Yes I voted no but I also believe in accepting the majority opinion even when an election doesn't go my way. I realize this is a radical statement in this day and age where all of our laws need to be written by judges.

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Oh come on, it's like "The People vs. Randal Graves. The Honorable Randal Graves presiding."

Marriage is a fundamental right that cannot constitutionally be put to a vote. What if, hypothetically, CA voters decided that all people named Mike should be brutally tortured? IT'S THE WILL OF THE MAJORITY!

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Don't argue with me. Argue with the judge. You'll fail miserably.

It's still pending appeal. Christ you're insufferable with the little semantic games you like to play so you can feel like you get a "win." I AWARD YOU 7 INTERNET POINTS

lol no it is not

Uh, you were wrong. Sorry for pointing it out? Obviously the decision is pending appeal. It is unknown whether prop 8 will continue to be enforced pending appeal.

Have you ever heard of Loving v. Virginia? The SCOTUS says it is. And so it is.

I mean holy god you're so mindblowingly wrong.

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With what I've read of the opinion thus far, and again, the circus-like way the judge handled the case, I don't see how you can say with a straight face that there's "no bias whatsoever."

Yes, what I've read thus far shows the defense did a particularly shitty job here, probably because they're state attorneys who were opposing the case because they had to and not because they actually believed their own arguments (such as they were). Plus, it's not like California really has the funds to go toe to toe with the big money who was almost certainly backing the anti-Prop 8 side. But even so, it doesn't follow that all of the plaintiff's witnesses were all completely credible experts whose opinions could be accepted as gospel truth, while all (okay, both) of the defense's witnesses were somehow eminently unqualified or not credible. That just comes off as a very intellectually lazy way out.

You're just trying to obfuscate the fact that you believed Prop 8 was at current not enforced. Which is a real wrong as opposed to a semantic one. But don't worry, you win the internet today

The SCOTUS doesn't write the Constitution, wherein our rights are detailed. It interprets it.

ANYONE WHO DISAGREES WITH EULOGY IS WRONG, PEOPLE

Why do all the plaintiffs' witnesses have to be supremely credible experts? They had some, the defense had none.

http://minx.cc/?post=304288

Yeah, and? Long ago, it interpreted marriage to be a fundamental right, dictating the legal framework in which we're now operating.

Yes, I admittedly jumped the gun and was incorrect. But so were you, and not just semantically. Factually.

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Tyranny of the masses. /thread

At this point I'm honestly willing to hear Corganist out here (provided he gets off the "JUDGE WAS CLEARLY BIASED SO THE WHOLE DECISION SUCKS" track). But you're so far out of your element it's no longer amusing.

The defense had none mainly because the judge's theatrics about trying to get the trial broadcast spooked many of the experts the defense had lined up out of testifying. It's not surprising if even after the SCOTUS smacked him down that the experts wouldn't allow themselves to be part of his circus. They actually are the better for it considering the way the judge completely and pretty arbitrarily shit on the credibility of the two witnesses who did get called.

It'd be one thing if the judge merely ruled that the think tank guy (Blackenhorn) wasn't really an expert on fatherhood and families like he claimed. It would have been reasonable (though I don't see how he was significantly less qualified than any of the plaintiff's experts). But the fact that the judge ruled that a PhD in political science isn't an expert on the concept of political power and thus can't be credible on the subject? Are you kidding me? Is it just a coincidence that being able to disregard his testimony opened the door for the judge to make his specious and overreaching strict scrutiny argument that you posted above?

Regardless of level of expertise, a witness is still required to cite factual evidence, is he not? Blankenhorn cited a groupthink exercise where people wrote down whatever was suggested. He may be a potentially credible witness, but nothing he offered at trial provided any evidence for the defense. So his testimony is useless, right?

And I'm not buying the "the witnesses were spooked" angle. Are you kidding me, Corganist? Really? Jesus h. Christ.

Edit: Also,

http://www.calitics.com/diary/11078/...ig-bad-youtube

I MEAN COME ON

So what's the excuse for the other two witnesses who were withdrawn then? Are you just not going to budge on the notion that maybe the way the judge handled the trial, particularly his zeal to have the trial broadcast that required the Supreme Court to make a special ruling just to stop him, may have produced a chilling effect on the defense? It's one thing walking into a case knowing you're going to be recorded as part of a public record that'll be seen by few. It's another thing knowing you're walking into a circus, which is exactly where this trial was headed before the SCOTUS stepped in.

None of that is a constitutional argument. It was 100% "what do you think about gay couples."

This is why having a monarchy is so much better.

What's really striking me is that I've now read/skimmed over 110 pages of the 138 page opinion, and I'm only just now encountering any semblance of Constitutional law being applied.

Oh young boy, how sweet your naivete.

A couple of things: I'll try to track down deposition transcripts from the other witnesses and then hopefully we can see what (if anything) they would have brought to the table. But what do you think we'll really find? You don't think that if any evidence could be brought forth to support prop 8, NOM or Protect Marriage would have found it at some point before November of 2008? As for them being "chilled," I'm still not going to buy it. Anyone that 1. would be crazy/stupid enough to harm a witness for his or her testimony and 2. cares enough about this to get that crazy/stupid would most assuredly know where to find the transcript of the testimony. You have to admit that, don't you?

The state of California would need to have a significant interest in withholding or a compelling reason to withhold the right to marry from homosexuals. So all of that is entirely relevant. You do not know what you are talking about.

Finished my first runthrough of the opinion. The whole thing is a house of cards built mostly on the judge's total acceptance of the plaintiff's experts' testimony and his own inferences drawn from it. The majority of the opinion is the judge merely making "findings of fact" that basically say "Everything the plaintiffs said was true, and the proponents of Prop 8 are clearly secret bigots." The part where he actually applies the law is actually very brief and shockingly cursory for such a long opinion.

The only place that he really has a leg to stand on in what little actual legal analysis is offered is the due process claim. It is true that since there is no shortage of opinions that define the right to marriage as fundamental, strict scrutiny might be the appropriate standard for review as far as the due process clause goes. And the defense did a laughable job of even trying to meet the burden of strict scrutiny. All the same though, I find the judge's reasoning as far as the distinction between domestic partnerships and marriage and how well domestic partnerships satisfy the fundamental right to marry to be very weak. He seems to be saying that your fundamental right to marriage isn't satisfied unless your relationship has "cultural..status" or "social meaning," which is ridiculous. Domestic partnerships may not satisfy the fundamental right to marry, but not for such airy reasons. Still, I wouldn't be terribly surprised if the case got upheld on similar due process grounds somewhere down the line.

The same can't be said for his equal protection analysis. The whole thing is rife with errors. Sexual orientation has never been a classification that gives rise to strict scrutiny as far as I've ever seen, and he provides no case law to support this far-reaching claim. Furthermore, he doesn't even bother to apply strict scrutiny even though he emphatically declares it the proper standard of review (most likely because doing so would make his being overturned an absolute certainty). Instead, he (mis)applies the more deferential (or at least it's supposed to be) rational basis test. Granted, the defense offered up some really shitty bases for the act (“[a]cting incrementally and with caution when considering a radical transformation to the fundamental nature of a bedrock social institution"? Really?), but they still stumbled upon enough to pass rational basis review pretty easily.

The judge is so hung up on his "findings of fact" that he doesn't seem to realize or understand that the rational basis test doesn't really require facts. It may not be true that Prop 8 actually encourages the results its proponents claim it does, but that's not the deciding factor. The only thing the judge has to decide for the rational basis test is whether or not it is at all reasonable to think that the law could have been passed with those goals in mind (whether it does anything to accomplish them or not). It isn't for a judge to say that a law is irrational merely because he considers it ineffective, yet that's pretty clearly what he does here. I can't see a higher court upholding him on the equal protection part unless they apply one of the higher levels of scrutiny that the judge here was afraid to.

Separate but equal doesn't carry a significant and discriminatory social meaning?


This is getting out of my realm a bit here, but I thought that developing homosexuals as a suspect class was part of what the prosecution aimed for (and in my opinion, succeeded with.)



The defense at no point got even close to even implying that it was reasonable to think that it could have been passed with those goals in mind. Something can't be reasonable if there are no facts and no evidence backing it and is founded on fear and ignorance.

After reading the opinion, I'm not sure the attorneys for NOM or Protect Marriage could find evidence of their own ass using both hands.

I don't buy the idea that all violent wingnuts are equally driven or interested in the issues. Having your words on the record and having your face out there for all to see are two different propositions. With the increased media coverage that would have surely come along with the trial being broadcast, who is to say that there may not have been increased risk to go along with it?

Who's to say that there most assuredly was and that some judge ruined the defense's case?? You're the one who's making an assertion here.

Also, can we at least agree that, setting aside the content of the opinion, the side that deserved to win in this particular instance did win?

It does, IMO. But is there a fundamental right to have "social meaning" in your relationship that's somehow incorporated into the fundamental right of marriage? That seems to be a novel theory to me.

I'm sure that the plaintiffs did try to make the case that homosexuals are a suspect class. But clearly the judge was not confident enough in their development of that to hinge any of his opinion on it, other than to say he could have applied strict scrutiny if he wanted to.

Facts and evidence aren't what makes a law reasonable. Rational basis doesn't require that the law actually bring about a stated outcome. If it's even slightly arguable that a law could serve a legitimate, reasonable purpose, then it passes the rational basis test, even if there's no evidence to show that the said purpose was ever contemplated when the law was conceived and no evidence to show that the law has done anything towards actually accomplishing it. A law can be an abject failure in every way imaginable and still pass the low bar of the rational basis test.

I don't think most of the arguments the defense offered up would survive even intermediate scrutiny. And a couple of them don't even meet up to rational basis standard. But a couple of them do, despite what this judge says, and he should have made his case for applying strict scrutiny and deconstructed those arguments properly if he was going to strike down Prop 8 on equal protection grounds. As it is, his equal protection analysis is critically flawed and should be overturned or at least affirmed on different grounds.

Can you explain how you think it passes the rational basis test?

I don't know if I'd go that far. Clearly there was better lawyering on the plaintiff's side, particularly in making a factual case, but IMO the defense still had the law on their side when it comes down to brass tacks. I think the problem was that they thought that being right on the law meant they didn't have to make a case.