Judge to a bunch of assholes on California: Suck it.

[duovamp]

Tyranny of the masses. /thread

[Eulogy]

Originally Posted by Nimrod's Son

ANYONE WHO DISAGREES WITH EULOGY IS WRONG, PEOPLE

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.

[Corganist]

Originally Posted by Eulogy

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

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?

[Eulogy]

Originally Posted by Corganist

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

[Eulogy]

Anyway, these folks go around doing expert testimony for social conservative causes. Apparently hiding their faces while doing so. Perhaps Paul Nathanson should have hidden more than his face during the Iowa same-sex marriage, Varnum V. Brien, and just gone mute. It would have done more benefit for the opponents of marriage equality. Nathanson's testimony Varnum was so ridiculous that the court struck it from the record stating that his testimony was "not based on observation supported by scientific methodology or . . . on empirical research in any sense."

Forgetting my legal training, and just looking at a quick behavioral and textual reading of this testimony, it is clear that neither of these two witnesses would have done a lick of good for the Prop 8 defense. As we go through these clips, you'll know exactly what I mean. Let's start with Paul Nathanson (transcript here):

Q - Let's try to break that down into two parts. First, you recognize that gay couples are today raising children, correct?
A - Yes.
Q - And you believe that enabling those gay couples to marry would enhance their ability to be good parents to the chi-
A - Yes.

Basically, this guy admits something that David Blankenhorn ended up admitting on the stand: lack of marriage equality harms children being raised by LGBT parents. While the defense completely failed to prove that there was any damage whatsoever from marriage equality on the children of straight parents, over and over again, event the defense's own witnesses acknowledged that there was real and serious harm done to not only LGBT couples, but their families. Meanwhile, Nathanson is looking unhappy and snippy. All in all, he was just another Blankenhorn debacle waiting to happen. And, I think even the defense would privately admit that could have gone better.

And Katherine Young would not have been much better. See the thing is that with these scientists, they've actually read these studies, and understand the background. This is where Boies picked apart Prof. Miller. Miller had to eventually admit that his position was contrary to the great bulk of research in the field. And Miller's testimony, at its best, could only go to a small portion of what they were trying to show. Young wound up admitting a gold mine's worth in her deposition. It's almost hard to pick out selections from the transcript of Young's deposition.

Q - My question is, is it your view that because something was the norm in the past, it should be continued in the future? ...
A - Just because something is a norm, it doesn't necessarily mean it is an appropriate norm, and it has to then be reassessed in the contemporary context to see if t norm should remain.
***
Q - And you believe that allowing gay couples to marry will increase the durability of those gay couples relationships, correct?
A - Okay. I'll say yes.
***
Q - Okay. And increasing the durability of those relationships is beneficial to the children that they're raising, correct?
A - On that one factor, yes.

While Young does come across looking annoyed, she doesn't seem quite so smug as Blankenhorn and Nathanson, so point for her on that. However, the factual admissions she makes were just too much for the Prop 8 defense to consider putting her on the stand.

At any rate, both Nathanson and Young hardly look fearful of appearing either on YouTube or on the witness stand. This was a purely tactical decision masquerading as something else. After all, they have written several books together about how men are an oppressed minority, they are hardly afraid of spouting controversial opinions in public. The reason these two didn't testify has nothing to do with being scared, and everything to do with the fact that they were simply bad witnesses.

I MEAN COME ON

[Corganist]

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.

[Nimrod's Son]

Originally Posted by Eulogy

I MEAN COME ON

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

[duovamp]

This is why having a monarchy is so much better.

[Corganist]

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.

[duovamp]

Originally Posted by Corganist

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.

[Eulogy]

Originally Posted by Corganist

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.

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?

[Eulogy]

Originally Posted by Nimrod's Son

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

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.

[Corganist]

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.

[Eulogy]

Originally Posted by Corganist

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.

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

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.

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 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.

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.

[Corganist]

Originally Posted by Eulogy

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?

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.

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?

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?

[Eulogy]

Originally Posted by Corganist

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.

[Eulogy]

Originally Posted by Corganist

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.

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?

[Corganist]

Originally Posted by Eulogy

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

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.

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.)

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.

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.

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.

[Eulogy]

Originally Posted by Corganist

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?

[Corganist]

Originally Posted by Eulogy

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?

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.

[Eulogy]

Originally Posted by Corganist

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.

How were they right on the law??

[Corganist]

Originally Posted by Eulogy

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

I think that at the very least that #3 on the list of rationales the judge lists for the defense passes muster under rational basis. The title of the rationale as being merely "promoting opposite-sex parenting over same-sex parenting" is really misleading, and I'm curious if the defense lawyers phrased it that way or if the judge characterized the arguments as such. In actuality the argument made is more nuanced than that:

(1) promotes “stability and responsibility in naturally procreative relationships”;
(2) promotes “enduring and stable family structures for the responsible raising and care of children by their biological parents”;
(3) increases “the probability that natural procreation will occur within stable, enduring, and supporting family structures”;
(4) promotes “the natural and mutually beneficial bond between parents and their biological children”;
(5) increases “the probability that each child will be raised by both of his or her biological parents”;
(6) increases “the probability that each child will be raised by both a father and a mother"
(7) increases “the probability that each child will have a legally recognized father and mother.

Remember, only one of these needs to be considered a possible legitimate end for the law to pass the rational basis test. In particular, I think number 3 (increasing the probability of natural procreation) is perfectly legitimate, and its connection to marriage law is rational. The judge's assertion that it isn't is severely lacking. He says that because Prop 8 encourages "some" sexual activity or child raising outside of marriage (because homosexual couples will still do both even if they cannot marry), then the law actually discourages a norm of procreation during marriage. But he doesn't even address the idea that even despite the law encouraging "some" sexual activity and child-raising outside of marriage, it doesn't mean it's irrational to think that the net effect of the law could be to encourage more sexual activity and child-raising within marriage. And doing more good than harm (or at least intending to) is all the law really has to do. It doesn't have to wipe out all unmarried sex and raising of children. It's clearly not an irrational premise, and so it should have passed at least the rational basis test.

[TuralyonW3]

dumb dumb dumb dumb dumb

[Eulogy]

So without gay marriage, straight people are more likely to naturally procreate? What? That doesn't make any sense at all.

[duovamp]

Queers harsh the groove straighties are trying to get, and lesbos just distract dudes into jerking off.

[Corganist]

Originally Posted by Eulogy

So without gay marriage, straight people are more likely to naturally procreate? What? That doesn't make any sense at all.

It's not that gay marriage itself affects the likelihood of procreation in straight marriages. The line of thought is that allowing straight people to marry incentivises procreation into more stable family situations, and opening marriage up to gays does absolutely nothing to serve that interest.

You can quibble on how workable that may be in practice, but I don't see reason to call it clearly and unequivocally irrational on its face, and certainly not for the silly reasons the judge used in his opinion.

[Eulogy]

...and you think Walker is the one reaching here?

[Eulogy]

Also, as walker pointed out, the reason that fails is that there could never be a law prohibiting infertile couples from marrying.

[duovamp]

lol @ using "clearly" followed immediately by "unequivocally"

[Eulogy]

...or at least there never has been and there is no basis for one.