Judge doubts gay marriage ban's backers can appeal

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LunarRay

Diamond Member
Mar 2, 2003
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Federal Judges dont have the legal jurisdiction to rule on such a case. This will be made clear at the supreme court case. The Federal Court will uphold the State Law. They have a tradition of not attempting to define marriage. This is clearly a state's Issue. The Federal Government has never attempted to define marriage in over 150 years of case law.

The Federal Marriage Act or DOMA seems to be an attempt to define marriage. Or at least what benefits would flow to what kind of marriage...

Baker v Nelson, assuming the SCOTUS decided 'on the merits', is the controlling case, it seems to me. It contained all the rights and guarantees this Perry case seeks to address.
I'm not sure that the 9th will overturn but they should if they can find Baker controls and I can't see how they wouldn't... I don't agree with Baker at all in any way... it is so obvious as I see it... but there it is...
IIRC, back in '72 sodomy was not legal activity and of course Lesbians don't fit in that condition... Lawrence seems to have seen that but it was not articulated.... Baker of '72 was a big issue in Constitutional Law discussions even in '78 when I lived through that process of edification.
 
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ElFenix

Elite Member
Super Moderator
Mar 20, 2000
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It would also be "outspoken and gutsy" if John Roberts attempted to declare martial law, but it would also be very wrong. I'm not sure I like those attributes in a judge. And I actually have no problem with gays getting married. Regardless of my views, Judge Walker is on dubious legal grounds to question whether the ban backers can appeal - of course they can! And if the appellate court doesn't think they have standing, that's a call for the appellate court to make, not him.

the article is not very clear on this point, but it's not the right to appeal the main case that the judge is doubting. of course they have the right to appeal. that's why it's called an appeal (everyone can appeal as of right. the supreme court hears practically no cases on appeal as there are very few cases where the supreme court's jurisdiction is appellate in nature; more cases are heard on cert.)

what the judge is saying is that because none of the people pushing the ban can point to any harm they would suffer if prop 8 isn't enjoined, they have no ground to appeal the judge's injuction against prop 8 while the main case is awaiting decision by the 9th circuit. the injunction decision is a preliminary measure while the case is on trial. preliminary/temporary injunctions are all about balancing harms. and there is no harm to the people for prop 8 in enjoining enforcement.
 

thraashman

Lifer
Apr 10, 2000
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Every time this issue comes up, I'm amazed at how little conservatives actually support the Constitution.
 

PokerGuy

Lifer
Jul 2, 2005
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Every time this issue comes up, I'm amazed at how little conservatives actually support the Constitution.

Perhaps if you can articulate for me where exactly in the constitution it defines what constitutes a marriage, and that there can be no restrictions to it.
 

LunarRay

Diamond Member
Mar 2, 2003
9,993
1
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Perhaps if you can articulate for me where exactly in the constitution it defines what constitutes a marriage, and that there can be no restrictions to it.

It is quite obvious that you can't deny a fundamental right to a class of people that is enjoyed by the multitude without having at least a very compelling reason to do so. The right to marriage is held by the individual... and it is a fundamental right!

You simply have to pass the level of scrutiny required (intermediate, I think) and you can deny the right... So it is incumbent on the State to do so... otherwise, it ought to be in violation of our Constitution as previously interpreted.

Marriage is considered to be a contract between two persons legally able to enter into that contract. Not two animals but two humans. There is a logic question that evolves when you seek to invoke a man and woman only... especially when it is a right held by the individual. The Constitution is not only what was written and its Amendments but what The Courts have determined some provisions to mean... Marriage might be thought of as an unarticulated condition.
 
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IGBT

Lifer
Jul 16, 2001
17,960
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Quote:
Originally Posted by BAMAVOO View Post
Life would be much better if all the gays would just get back in the closet.
But, were would you hang your coat then?


if the closet were full david caridine might still be alive.
 

zinfamous

No Lifer
Jul 12, 2006
111,125
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Wow, I must say I'm shocked, a gay judge saying that opponents of gay marriage have nothing to stand on. Yawn.

the defendants had an opportunity to challenge the judge based on personal stakes concerning this case before the trial began. Yet, they did not.

Why do you think that is the case?
 

SlickSnake

Diamond Member
May 29, 2007
5,235
2
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So just to refresh many of your failing memories, the USA government is NOT a religious entity, and to insure it stays that way, we all have a constitutional right mandating the SEPARATION of CHURCH and STATE. But nevertheless, the federal, state and local governments bestows all these legal rights, protections and benefits to spouses and kids ONLY through LEGAL RELIGIOUS MARRIAGE PRACTICES which is obviously DISCRIMINATORY to any GAYS or even atheists, and CONSTITUTIONALLY ILLEGAL in the first place.

U. S. Constitution - Amendment 1 (notice it's the FIRST one, that should make you think.)

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;

This has been LEGALLY interpreted MANY TIMES as meaning a "SEPARATION OF CHURCH AND STATE" regarding the making of laws involving religions or religious in nature. This would also include passing a religious based law mandating a state religion, or even passing religious marriage laws that would discriminate against, well, atheists or even - GASP! GAYS! O-M-G!

And the "Or prohibiting the free exercise thereof" part could also be interpreted as states passing a hate based illegal religious law, like, I dunno, A GAY RELIGIOUS MARRIAGE BAN promoted primarily by a minority of insane God crazed religious zealots?

See, the Constitution is pretty vague about some things, as you well know. Which is why it took some time for slaves to be free, and women and blacks to gain equality and the rights to vote, too. And which is why it's either up to the courts to interpret the law, or up to congress to change the law.

But when you let angry religious zealots interpret the law religiously however they like on a state by state level, and suppress a minority for their sadistic pleasure, you obviously have a recipe for disaster, and the constitution already addressed that possible situation and prohibited it.

What started all of this controversy was also not just the gays, it was due to a minority of religious fundamentalists filled with anger and hate over various state judges rulings that allowed gay marriages based on unconstitutional or discriminatory grounds. Then the religious zealots got even angrier, and rallied to pass ILLEGAL state laws OUTLAWING gay marriages in various states. The gays did not start this legal fight, the religious fundamentalist deviants did, like Fred Phelps and his unholy church of hate. This legal fight is no different than any other civil rights battle this country has ever faced before, like slavery and women and blacks voting.

And anyone who disagrees this has become a civil rights battle probably also think gays need to sit in the back of the bus where they won't be seen, too.

This whole legal equal marriage rights fight makes no sense at all, from a constitutional and discriminatory perspective. It clearly marches the country backwards to the slave days, and unequal rights for citizens. And it was only started as a pathetic attempt at a social distraction while the Republikrauts marched us off to war in Iraq for phony weapons of mass destruction that didn't even exist. And most knee jerk reactionary religious zealots took the gay bait hook, line and sinker, and completely ignored the new Iraq war, just as the Republikrauts planned.

And it's completely offensive to the gays that they were abused and misused and offered up as a political and religious sacrificial scapegoat for this slight of hand war distraction, too.

Ultimately, you might not like gay marriage, you might not agree with gay marriage, but you are not the one in a gay marriage, and their kids and spouses certainly deserve the same legal protections and rights that you do.

But I think based on these constitutional grounds, this is why the judge thinks the backers of illegal state laws outlawing gay marriages don't stand a chance of being upheld at the federal level.
 
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PokerGuy

Lifer
Jul 2, 2005
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It is quite obvious that you can't deny a fundamental right.... The right to marriage is held by the individual... and it is a fundamental right!

That being a fundamental right and all, please point me to the section in the constitution dealing with that fundamental right. I mean, far lesser rights are articulated and specified, surely there's a whole section on this "fundamental" right, yes? Then, point me to the section dealing with defining what exactly marriage is and how government should or should not be involved in it.

Marriage is considered to be a contract between two persons legally able to enter into that contract.

Notice how you just arbitrarily created your own definition on what it is? Who decided it was to be specifically 2 people and not, say, 3? Notice how you made it "contract between two persons" instead of what it's been for thousands of years, a social and legal arrangement between a man and a woman?

The fact is, marriage started as a religious institution that has been adopted by every government in the world over time because of it's stabilizing effect on society as a social construct. Now you're saying the definition is wrong, replace it with a new arbitrary one, and then proclaim the new definition is clearly the only valid one.

There is a logic question that evolves when you seek to invoke a man and woman only
Huh? Seek to invoke? That's what it's been for thousands of years.
 
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Craig234

Lifer
May 1, 2006
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That being a fundamental right and all, please point me to the section in the constitution dealing with that fundamental right. I mean, far lesser rights are articulated and specified, surely there's a whole section on this "fundamental" right, yes? Then, point me to the section dealing with defining what exactly marriage is and how government should or should not be involved in it.

Why can't the government make it illegal for women to buy birth control pills?

Because the government has no constitutional power to do so, compared with the citizen's rights the Supreme Court recognized are implied in the constitution.

Read the document, check out the 9th and 10th. Use a little common sense.

Not long ago, the Court also said in an opinion that marriage is a fundamental human right - check out the logic in Loving v. Virginia for the Court's view.

When the Bill of Rights was demanded by some politicians in order to vote for the constitution, they said that they didn't trust leaving a lot of specific rights unspecified. So some specific limitations on the government were put in, but the authors said they were concerned that listing some would imply others are not also rights - and so you got the 9th and 10th amendments, you got what you don't understand is in the constitution, a context that there are other rights not listed.

You're proving the authors' concerns right, that rights that are protected are put in jeopardy by others being listed, despite the 9th and 10th.

Also, the constitution has something called 'equal protection under the law'. Some people are gay. You may not like that, but it doesn't stop raining if you don't like it either. You are trying to say "you heterosexual people can marry the person you want, and you want someone of the opposite gender. You gay people cannot marry the person you want, because you don't want someone of the opposite gender."

The thing is, is that distinction based on something substantive, or on nothing substantive, leaving prejudice and bigotry? Courts have found it's the latter.

Not letting gay people marry is hardly giving them equal protection under the law, by denying them rights for no reason but empty rhetoric that is nothing but bigotry.

Notice how you just arbitrarily created your own definition on what it is? Who decided it was to be specifically 2 people and not, say, 3? Notice how you made it "contract between two persons" instead of what it's been for thousands of years, a social and legal arrangement between a man and a woman?

The fact is, marriage started as a religious institution that has been adopted by every government in the world over time because of it's stabilizing effect on society as a social construct. Now you're saying the definition is wrong, replace it with a new arbitrary one, and then proclaim the new definition is clearly the only valid one.

Huh? Seek to invoke? That's what it's been for thousands of years.

The question can be asked about the number of people, but you sound ignorant about the history of marriage. Most would not accept what marriage has often been.

How is a heterosexual couple's marriage affected if a gay couple marries? Not a bit.

It's not 'changing the definition of marriage' for a couple - it's changing the discrimination of who is not allowed to have the same type of marriage.

Heterosexual couple marriages are not changed at all, there's no 'new definition'.

That's like saying we redefined drinking fountains when we stopped having white-only ones. No, the drinking fountain wasn't redefined - who can use it was.

You don't have a point, you simply want to discriminate and are making excuses.
 
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PokerGuy

Lifer
Jul 2, 2005
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<usual Craig BS removed>

You can dodge and weave all you want, but marriage has been defined as a man and one (or more, in some cultures) woman for thousands of years. You are seeking to change that definition to include other couplings of your choice as "marriages".

If the definition of "blue" is changed to include things that are red, are you changing blue things? No, you're not. But that doesn't mean you're not changing the definition of "blue", you're making it define something else entirely.
 

ZzZGuy

Golden Member
Nov 15, 2006
1,855
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<usual Craig BS removed>

You can dodge and weave all you want, but marriage has been defined as a man and one (or more, in some cultures) woman for thousands of years. You are seeking to change that definition to include other couplings of your choice as "marriages".

If the definition of "blue" is changed to include things that are red, are you changing blue things? No, you're not. But that doesn't mean you're not changing the definition of "blue", you're making it define something else entirely.

Ok then, lets go stoning woman who have sex outside of marriage, offer up human sacrifices to the sun god, bar woman from setting foot on boats, start up slavery again, kill everyone who won't convert to your religion, burn people for witchcraft, ect ect ect.

Just because something has been done for a long time does not mean it's right.

-edit- Oh and I like the part where you imply men and only men having multiple wives is also a good thing.
 
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PokerGuy

Lifer
Jul 2, 2005
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Just because something has been done for a long time does not mean it's right.

-edit- Oh and I like the part where you imply men and only men having multiple wives is also a good thing.

1) nobody said that just because something's been done for a long time it's right. The point was that the meaning of the term is being redefined arbitrarily, yet those redefining it pretend that those not wanting to change it's definition are trying to change it.

2) I did not imply any such thing. From a consistency perspective, if you believe it's a fundamental human right that can not be restricted without going afoul of equal protection clause, you have to be OK with that (or any other) definition of it as well. Hypocrites want it both ways.
 

LunarRay

Diamond Member
Mar 2, 2003
9,993
1
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That being a fundamental right and all, please point me to the section in the constitution dealing with that fundamental right. I mean, far lesser rights are articulated and specified, surely there's a whole section on this "fundamental" right, yes? Then, point me to the section dealing with defining what exactly marriage is and how government should or should not be involved in it.

What I said is: Interpretation of the Constitution has held that there are Fundamental Rights... It don't have a section or paragraph that enumerates marriage as being a Fundamental Right but if SCOTUS finds that to be the case then it is and that is the name of that tune...

Some rights generally recognized as fundamental



Right to freedom of speech
Right to freedom of movement
Right to vote in general election
Right to make babies regardless of marital status
Right to privacy
Right to marry
Right to own property
Right to keep and bear arms
And probably 5 or 6 more that I can't think of atm.

EDIT: The issue is to do with the level of scrutiny that must be crossed in order for a State.. or Federal Government to be able to deny a right... It must have a compelling reason to do so and not some Rational Basis.

I'll respond to the other items in your post when I get back from the VA.
 
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PokerGuy

Lifer
Jul 2, 2005
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It don't have a section or paragraph that enumerates marriage as being a Fundamental Right but if SCOTUS finds that to be the case then it is and that is the name of that tune...

Sure, the court can invent all sorts of "rights" wherever it wants, that's the nature of the beast. Everyone currently has the right to marry, based on the current and historical definition. I have the right to the pursuit of happiness. If that pursuit for me includes buying a beer on Sunday, surely that right can't be infringed without a "compelling reason", correct? Oh wait, many states have blue laws on the books without any compelling reason other than a religious historical background. This is no different.
 

LunarRay

Diamond Member
Mar 2, 2003
9,993
1
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Sure, the court can invent all sorts of "rights" wherever it wants, that's the nature of the beast. Everyone currently has the right to marry, based on the current and historical definition. I have the right to the pursuit of happiness. If that pursuit for me includes buying a beer on Sunday, surely that right can't be infringed without a "compelling reason", correct? Oh wait, many states have blue laws on the books without any compelling reason other than a religious historical background. This is no different.

Look... the premise is that SCOTUS tells us what the Constitution means. You have to accept that notion to dialog about the reality we live in.

I'm not a Tenured Professor of Constitutional Law so I'm not grading you... :). If you don't agree with my position that is fine. But the following is what I gleam from the opinions I've read, argued and live by.

Anyhow, think of 'Rights' as living in buckets... There are three of them...
Basic Rights Bucket, Fundamental Rights Bucket and Inalienable Rights Bucket...

Inalienable Rights are those like; Life, Liberty and etc..
Fundamental Rights are like what I posted earlier.
And, Basic Rights are the lowest class of Rights which might include stuff that the State may say is a privilege like driving an auto by using a Rational Basis to do that. Each bucket has attached the criteria needed for denial.

Now for my logic... RE: Marriage...
The court has held that marriage is a Fundamental Right! The State or the people by referendum might seek to deny that right to a person for any number of reasons... like; under age, mental capacity, and maybe others. But, that flows across all people. There is no group that suffers that limitation. Everyone does. The State has shown a very compelling reason to do so...
OK, If you look at all the buckets of Rights you'll find just one and maybe two that although are Individual and Fundamental Rights they require another person to enjoy it... You have the right but it takes two to tango.
So here comes the State and says everyone has the right to marry... including Gays... But you can only marry a person of the opposite sex... Thus they have created a Suspect Group in which the individual has the right to marry (Gays who seek to marry a person of their own sex). The State says its basis for this limitation is; Tradition or Religion or Kids get confused and so on..
So, we've not only a Suspect Class but also a Fundamental Right at stake.
That combo requires at least passing Intermediate Scrutiny. But the notion of Tradition, etc. does not even meet the test of Rational Basis... Tradition is not the basis of the law... A compelling reason is... Ergo, the effort to deny must fail... You don't even need to decide if Equal Protection or Due Process is involved... IT fails before it gets to that level... Denying a Felon the vote... passed the Compelling reason and Due Process and Equal Protection aspects and so the Fundamental Right to vote is denied.

My favorite example involves a person seeking to park their car on the street... Along comes the state and says no parking here... NO one can park there.. The state has a rational basis to do that so no debate... But then a week later you see the curb painted with 'Parking permitted to all but one armed, Irish midgets....' What that notice does is creates a Suspect Class of people (One armed Irish midgets). They file against the State based on this denial of their right to park there... The State's argument is: Well, one armed Irish midgets don't park well. They take up extra space cuz they can't see as well to park... or some such.. That is not rational and it violates equal protection. The State needs having a compelling reason and their 'excuse' don't make it..

But, as I said, I'm not a Tenured Professor of Constitutional Law and even if I was it is for the Trial Court, Appellate Court of the District and the SCOTUS to decide that issue and then we'll all see what the Constitution provides regarding One armed, Irish midgets and their Parking situation.
 
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JulesMaximus

No Lifer
Jul 3, 2003
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I'm still trying to figure out why straight people give a shit if gay people marry each other...
 

PokerGuy

Lifer
Jul 2, 2005
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Lunar: that's actually a pretty good summation of the rights etc, but there's one crucial part where your reasoning goes off the rails. Everyone has the exact same right - to marry someone. Since marriage is and always has been defined as a social construct between a man and a woman, there is no exclusion, no suspect group, and hence no issue with simply maintaining the same definition.

To use your parking analogy: if they made a law that said "group x is not allowed to park here", that would be discriminator against group x. If a new group comes along and says "hey, we want to park sideways perpendicular instead of parallel to the road", and the law says "no sideways parking", that's not discriminatory, since everyone has the exact same right to park normally.
 
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LunarRay

Diamond Member
Mar 2, 2003
9,993
1
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I have the right to the pursuit of happiness. If that pursuit for me includes buying a beer on Sunday, surely that right can't be infringed without a "compelling reason", correct?

The Court decides if your beer denial created a Suspect Class... iow, can some get a beer and others not?
The issue of that getting a beer being in the bucket of Inalienable rights (pursuit of happiness) is up to the Court for the purpose of deciding if the State has met the Strict Scrutiny test.

You see there are different levels of scrutiny for different buckets of rights and one factor is that when you've a Suspect Class you must meet at least Intermediate Scrutiny... At least that is how it was. God knows if they changed it in some manner... But I rather suspect they'd not change the criteria when they could better and easily say the criteria met the test... if you see what I mean..
 

LunarRay

Diamond Member
Mar 2, 2003
9,993
1
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I'm still trying to figure out why straight people give a shit if gay people marry each other...

I'd put on my Moonbeam Clown face and say that folks have to dislike someone to feel good themselves... but that might mean I'm calling folks a bigoted lot of dingleberries... So I won't...
 

LunarRay

Diamond Member
Mar 2, 2003
9,993
1
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Lunar: that's actually a pretty good summation of the rights etc, but there's one crucial part where your reasoning goes off the rails. Everyone has the exact same right - to marry someone. Since marriage is and always has been defined as a social construct between a man and a woman, there is no exclusion, no suspect group, and hence no issue with simply maintaining the same definition.

Well, since there is a denial of the right... and there is more than one Gay... heheheheh obviously... there becomes that Suspect Class. Once you've some people who cant enjoy a right you got issues to deal with.. that is the issue here. That there is history from Adam and Eve or some other source that forever accepted boy/girl is the criteria that marriage envisioned is not the issue... IT is to do with the State denying the right to a suspect class of people... Arnold and Moonbeam (Brown) agree with me... they did not appeal nor really argue the issue in Trial Court.

To use your parking analogy: if they made a law that said "group x is not allowed to park here", that would be discriminator against group x. If a new group comes along and says "hey, we want to park sideways perpendicular instead of parallel to the road", and the law says "no sideways parking", that's not discriminatory, since everyone has the exact same right to park normally.

The State could argue that parking in the manner you indicate is not conducive to effective use of space... Rational Basis... Therefore, they can restrict parking but it must be to all parking seekers... they can't say One armed Irish midgets only are restricted... but they could make handicap parking available and restrict its use to the obvious handicap these Irish midgets have and others with handicaps....