Balkinization  

Saturday, May 17, 2008

Grading the California same-sex marriage opinion

Andrew Koppelman

The recent California same-sex marriage case, In re Marriage Cases, 2008 WL 2051892, has drawn a lot of coverage primarily on account of its consequences: same-sex marriage is coming to California, and unless the voters overturn the result by referendum, which is doubtful, it is there to stay. This is, in itself, good (although the decision, coming half a year before a presidential election, will help John McCain mobilize his alienated base, a consequence which a lot of same-sex marriage supporters should regard as bad). But a few people are also interested in the quality of its reasoning. If you are one of those people, the following analysis is for you. The rest can stop reading.

The California Supreme Court’s opinion is distressingly conclusory. It combines a tortured and probably unsalvageable substantive due process analysis with a strange, ultimately barely successful equal protection argument. If it is persuasive, it is barely so. Law professors are grumpy people who care less about whether you’ve argued the right side than about whether you’ve constructed your argument competently. I would give this opinion a barely passing grade.

The court’s arguments are based on clauses of the California constitution that resemble the federal equal protection and due process clauses. But since the decision wasn’t interpreting the U.S. Constitution, it can’t be reviewed by the U.S. Supreme Court.

The substantive due process argument

The doctrine of “substantive due process” holds that some interests of citizens are so fundamental that the state may not violate them without a compelling interest – which means, it is hardly ever permissible for the state to violate them. These interests are not enumerated in the Constitution. The judges must simply declare what they are. This can leave decisions based on them quite vulnerable, as notoriously is the case in the most prominent modern substantive due process decision, Roe v. Wade. The Court declares that there is a right to abortion without ever explaining the constitutional basis for such a right. (For my attempt to provide a better, more textually grounded basis, see here.)

The first holding of the California court is that there is a substantive right to marry, and that that right protects same-sex couples. Here is the crucial paragraph:

“Furthermore, in contrast to earlier times, our state now recognizes that an individual's capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon the individual's sexual orientation, and, more generally, that an individual's sexual orientation - like a person's race or gender - does not constitute a legitimate basis upon which to deny or withhold legal rights. We therefore conclude that in view of the substance and significance of the fundamental constitutional right to form a family relationship, the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples.”

The objection to this reasoning, of course, is that according to opponents of same-sex marriage, marriage is inherently heterosexual, so that same-sex marriage is a contradiction in terms. Rejecting that position requires substantive philosophical argument. It won’t do to just define marriage as “the substantive right of two adults who share a loving relationship to join together to establish an officially recognized family of their own.” That’s just a bald conclusion masquerading as an argument.

The conclusion is backed by paragraphs iterating that marriage is really, really important to the people who want to get married:

“The ability of an individual to join in a committed, long-term, officially recognized family relationship with the person of his or her choice is often of crucial significance to the individual's happiness and well-being. The legal commitment to long-term mutual emotional and economic support that is an integral part of an officially recognized marriage relationship provides an individual with the ability to invest in and rely upon a loving relationship with another adult in a way that may be crucial to the individual's development as a person and achievement of his or her full potential.”

I agree. I have written in favor of same-sex marriage many times. But the argument of the paragraph just quoted isn’t a constitutional argument. The fact that you really, really want to get married can’t be the basis for a constitutional right. Otherwise the incest and polygamy laws would be in trouble, too.

The opinion moves on to equal protection considerations. The rule of equal protection, crudely put, is that some forms of discrimination are unconstitutional when engaged in by the state.

Sex discrimination

The plaintiffs in the marriage case argued that the denial of marriage licenses to same-sex couples is sex discrimination. This argument, which I’ve made again and again, can be stated in two syllogisms.

First syllogism:
(1) Laws that make people’s legal rights depend on their sex are sex-based classifications.
(2) Laws that discriminate against gay people are laws that make people’s legal rights depend on their sex.
Illustrations: If Lucy may marry Fred, but Ricky may not marry Fred, then (assuming that Fred would be a desirable spouse for either) Ricky is suffering legal disadvantage because of his sex. If a business fires Ricky, or if the state prosecutes him, because of his sexual activities with Fred, while these actions would not be taken against Lucy if she did exactly the same things with Fred, then Ricky is suffering legal disadvantage because of his sex.
Therefore
(3) Laws that discriminate against gay people are sex-based classifications.

Second syllogism:
(1) Sex-based classifications are subject to heightened scrutiny.
(2) (from the first syllogism) Laws that discriminate against gay people are sex-based classifications.
Therefore
(3) Laws that discriminate against gay people are subject to heightened scrutiny.

This argument has been rejected in court many times, though none of the opinions have managed to counter the logic thus stated. I’ve always thought that courts had done this because, from a political standpoint, the argument proves too much. If accepted, the sex discrimination argument would entail that all laws discriminating against gays, notably marriage laws, must be swept away at a single stroke. Judges, I thought, are understandably hesitant to begin down that road.

Yet the California court rejects the argument, while at the same time upholding a right to same-sex marriage! What is the reasoning?

“In drawing a distinction between opposite-sex couples and same-sex couples, the challenged marriage statutes do not treat men and women differently. Persons of either gender are treated equally and are permitted to marry only a person of the opposite gender. In light of the equality of treatment between genders, the distinction prescribed by the relevant statutes plainly does not constitute discrimination on the basis of sex as that concept is commonly understood.”

The trouble with this reasoning is that it is the same logic that was used to defend bans on interracial marriage: both races are equally forbidden to engage in the prohibited sexual conduct, so there is no race discrimination. That argument was rejected by the U.S. Supreme Court in 1964 in McLaughlin v. Florida, in which the Court unanimously invalidated a criminal statute prohibiting an unmarried interracial couple from habitually living in and occupying the same room at night. “It is readily apparent,” wrote Justice White for the Court, that the statute “treats the interracial couple made up of a white person and a Negro differently than it does any other couple.” McLaughlin stated the obvious. If prohibited conduct is defined by reference to the actor’s own race or sex, the prohibition is not neutral with reference to that characteristic. Where same-sex marriage is prohibited, the clerk must, in doubtful cases, require the applicants to drop their pants or lift their skirts in order to know whether it is permissible to issue the marriage license.

The California court distinguishes the miscegenation decisions, including its own groundbreaking Perez v. Sharp (1948), because “the antimiscegenation statutes at issue in those cases plainly treated members of minority races differently from White persons, prohibiting only intermarriage that involved White persons in order to prevent (in the undisguised words of the defenders of the statute in Perez) ‘the Caucasian race from being contaminated by races whose members are by nature physically and mentally inferior to Caucasians.’” If this was the sole basis of those decisions, however, the miscegenation laws could have been saved by making them apply equally to all interracial marriages. The U.S. Supreme Court’s opinion finally invalidating all miscegenation laws in Loving v. Virginia (1967) made it clear that this was not an option.

The California court goes on to say that “a statute that treats a couple differently based upon whether the couple consists of persons of the same race or of different races generally reflects a policy disapproving of the integration or close relationship of individuals of different races in the setting in question, and as such properly is viewed as embodying an instance of racial discrimination with respect to the interracial couple and both of its members. By contrast, past judicial decisions, in California and elsewhere, virtually uniformly hold that a statute or policy that treats men and women equally but that accords differential treatment either to a couple based upon whether it consists of persons of the same sex rather than opposite sexes, or to an individual based upon whether he or she generally is sexually attracted to persons of the same gender rather than the opposite gender, is more accurately characterized as involving differential treatment on the basis of sexual orientation rather than an instance of sex discrimination, and properly should be analyzed on the former ground. These cases recognize that, in realistic terms, a statute or policy that treats same-sex couples differently from opposite-sex couples, or that treats individuals who are sexually attracted to persons of the same gender differently from individuals who are sexually attracted to persons of the opposite gender, does not treat an individual man or an individual woman differently because of his or her gender but rather accords differential treatment because of the individual's sexual orientation.”

But this makes no formal sense. The registrar has to determine what sex the applicants are. There is no particular reason for the registrar to inquire into the applicants’ sexual orientation. The California marriage law is then quite different from a rule that does formally discriminate against gay people, such as the U.S. military’s automatic expulsion of any member who is known to be gay.

Sexual orientation discrimination

The court then goes on to hold that discrimination on the basis of sexual orientation is presumptively unconstitutional. The court explains that “the most important factors in deciding whether a characteristic should be considered a constitutionally suspect basis for classification are whether the class of persons who exhibit a certain characteristic historically has been subjected to invidious and prejudicial treatment, and whether society now recognizes that the characteristic in question generally bears no relationship to the individual's ability to perform or contribute to society.”

Here the court is on firm ground for the first time. No one can reasonably dispute that gay people have been the object of unjust, insane hatred for a long time. Even the Vatican, no friend of gay rights, concedes that much. If it is stipulated that sexual orientation discrimination is what’s going on here, then the statute is in trouble.

Once we have gotten that far, then the burden is on the state to justify denying same-sex couples the right to marry. If the state has that burden, it is in trouble. The court is obviously right that a parallel institution of domestic partnership “inevitably will . . . be viewed as of lesser stature than marriage and, in effect, as a mark of second-class citizenship.” Opponents of same-sex marriage are confident that they are right, and perhaps they are entitled to their confidence, but they haven’t done a very good job of articulating their position. An argument simply defining marriage a certain way does the state no more good than it did the court (in the substantive due process argument, discussed above). So here, at last, the opinion winds up on solid ground.

It was, however, an unnecessarily bumpy ride.

So the case is rightly decided, even if much of its reasoning is unpersuasive. Let’s now hope that it survives the fall referendum and that the Republicans are so damaged that even this gift is not enough to salvage their hopes.


Comments:

"The doctrine of “substantive due process” holds that some interests of citizens are so fundamental that the state may not violate them without a compelling interest – which means, it is hardly ever permissible for the state to violate them. These interests are not enumerated in the Constitution. The judges must simply declare what they are."

Thankfully, that's not what substantive due process actually is. That's what Roe v. Wade says it is, and is what it does, but as Prof. Balkin can tell you, that was a pretty awful way to come to such a conclusion. The California opinion sidesteps substantive due process because the California Constitution explicitly creates a right to marriage.
 

It also is important to understand at the outset that our task in this proceeding is not to decide whether we believe, as a matter of policy, that the officially recognized relationship of a same-sex couple should be designated a marriage rather than a domestic partnership (or some other term), but instead only to determine whether the difference in the official names of the relationships violates the California Constitution.

They make a lot of noise about rights of people not being dependent on their sexual orientation, and they rightly conclude that it is discrimination to give a different name to unions that are legally the same only because they are same-sex, but correct me if I'm wrong: nowhere do they say that it would be discrimination to deny equal rights to same-sex couples. Please show me where they explicitly say that a man should have the all the same rights with a man that they have with a woman, or vice versa.

I think they leave that out because they know it is not necessarily true, they know that it would be constitutional to allow a man to conceive with a woman but prohibit him from conceiving with a man. But why do I ask, all the actual lawyers here know better than to go on record with any sort of foolish attempt at telling me I am wrong.
 

So does such a flawed argument in the decision make it easier for the decision to be overturned by a future CA supreme court?
 

"I have written in favor of same-sex marriage many times. But the argument of the paragraph just quoted isn’t a constitutional argument. The fact that you really, really want to get married can’t be the basis for a constitutional right. Otherwise the incest and polygamy laws would be in trouble, too."

Is the sentence is bold a constitutional argument? Are result-orientated arguments constitutionally permissible, or would be the logic of a syllogism, as also stated in the post, a better form of argument?
 

I'm with Zarevitz; "Otherwise the incest and polygamy laws would be in trouble, too." doesn't sound like a constitutional argument, either. In fact, it doesn't sound like ANY kind of argument. Just sounds like proponents of same sex marriage want liberty expanded just enough to encompass them, and no further.

Though I'll be generous and assume you're not that stingy, just concerned with denying the implications of your crusade until too late.

I'd have to say that it's very easy to distinguish between inter-racial and same sex marriage. The former has a long, long history of being legally recognized all over the place, with laws against it in the US being an aberration. And a narrowly focused aberration, at that. The latter was, until very recently, essentially unheard of. That's a big difference.
 

In that vein I should note that the constitutional case for polygamy is much, much stronger than for same sex marriage: It's got considerable history, is widely practiced around the world, and you can make an excellent case that laws against it are nothing but a full out violation of the 1st amendment: We went to WAR, essentially, with the Mormons, the US army forced them to change their religious doctrine on the matter!
 

I read a different argument using nominalism and logical identity.

Nominalism is the theory of language, associated with medieval Scholastic William of Ockham in the 12th century, but rejected as "heretical" by the Church. Since the 19th century, scientists and philosophers (and some legal scholars) have accepted nominalism and rejected essentialism. The core of the theory is that words NAME (1) objects, and (2) ideas, as opposed to essentialism, which claims to define the essence or "beingness" of a thing.

Leibniz's Law of Identity states the obvious: If A and B identify identical referents, then A=B. For example, the "morning star" and the "evening star" are not stars, nor separate phenomena, but the planet "Venus." By LLI, "morning star" = "evening star" = "Planet Venus."

In adopting nominalism and the logical law of identity, the Court reasoned as follows:

The name "marriage" names a set of descriptive statements.

The name "domestic partners" names a set of descriptive statements.

The different names name the SAME set of descriptive statements, one as "marriage" the other as "domestic partners." Ergo, by LLI "marriage" = "domestic partners."

The Court then asks rhetorically, if "marriage" = "domestic partners" by the law of identity, why does the State deliberately use DIFFERENT NAMES for virtually IDENTICAL referents?

Much of the decision considers the possible reasons the State might have in deliberately "equivocating," and rejects each and all the possibilities, save the obvious one: The State intends deliberately to "stigmatize" as "inferior" and "elevate" as "superior" otherwise identical sets of descriptions with the use of different names. (Which, of course, is the case.)

Then the Court asks: Does the State have a "compelling reason" to violate the federal and state anti-discrimination laws? The Court found none.

So, by the (1) Leibniz's law of identity, which (2) makes "marriage" virtually IDENTICAL to "domestic partners" in all BUT NAME, (3) the State's deliberate intention to "stigmatize" as "inferior" that without any substantiative differences, is the State's equivalent of Nominalist Plessy: "separate, but equal," (separate names, but equal descriptive statements) ruled unconstitutional in 1954 Brown v. Board.Therefore, ruled the Court, the nominative discrimination is unconstitutional.

That is all that I read the Court decided.
 

Yup, that's all they ruled on. Using a different name for the same thing stigmatizes.

Nowhere did they say that people should have the same rights with a woman they have with a man.
 

The objection to this reasoning, of course, is that according to opponents of same-sex marriage, marriage is inherently heterosexual, so that same-sex marriage is a contradiction in terms. Rejecting that position requires substantive philosophical argument. It won’t do to just define marriage as “the substantive right of two adults who share a loving relationship to join together to establish an officially recognized family of their own.” That’s just a bald conclusion masquerading as an argument.

I've never seen opponents give a "substantive philosophical argument" in support of their claim that marriage is inherently heterosexual. Until they do, I see no reason to accept that as a starting point, nor to bother with an argument against it.
 

SUBSTANTIVE DUE PROCESS

To start, the very concept of substantive due process is a contradiction in terms and has traditionally been a license for unconstitutional judicial legislation. This opinion is no different.

However, the CA Four apply a further fraudulent bait and switch syllogism:

1) Marriage is a fundamental right.

2) Homosexual unions are marriage.

3) Homosexual unions are also a fundamental right.

The fallacy in this fraudulent syllogism is that the CA Four knew damn well that the marriage found to be a fundamental right was ALWAYS defined as the union of one man and one woman. There is no precedent for either defining marriage to include homosexual unions or for the proposition that homosexual "marriage" is a fundamental right.

EQUAL PROTECTION

To start, heterosexual marriage and homosexual unions are not similarly situated. The purposed of marriage is to provide ordered families. Homosexual unions cannot do so. The fact that a small minority of marriages will not result in ordered families is irrelevant so long as marriage can produce ordered families.

One has to apply the Balkin approach to originalism and generalize the definition of marriage until it is almost meaningless - the union of two loving human beings - to similarly situate marriage and homosexual unions for EPC analysis. However, as I shall demonstrate, such generalization should cause the homosexual "marriage" EPC argument in the end to fail even the compelling need test.

Marriage is demonstrably the cornerstone of civilization on three levels:

1) Marriage civilizes men, allows them to live longer and be more productive.

Women convince men to engage in less risky behaviors and act more responsibly to support their family.

The woman man combination is obviously not present in homosexual unions and there is no evidence that single sex combinations have the same effect.

2) Marriage allows child bearing women far greater economic resources to take care of the resulting family.

Homosexual unions do not produce children. Thus, the ability of a marriage to economically sustain its children is simply applicable to homosexual unions.

3) Marriage creates and raises the most adjusted children to establish the next generation.

It is well established that married heterosexual couples are twice as likely as divorced couples and even more likely than single parent families to produce educated, non criminal and socially adjusted children.

Homosexual unions do not produce children and there is no evidence that adding the term "marriage" to homosexual unions caring for the children of heterosexual unions produces any advantages for the children.

When properly defined with the principles above, it is obvious that marriage is not in any way similarly situated with homosexual unions and thus the EPC does not apply.

If one generalizes and reduces marriage to simply the union of two loving human beings so one can artificially argue that homosexual unions are similarly situated to marriage, then even the compelling need test can be easily met.

On one hand, as noted above, heterosexual unions under the commitment of marriage offer far more to society than merely the union of two loving human beings.

On the other hand, homosexual unions are merely the union of two loving human beings and produce only emotional benefits for the members without any benefits at all for society.

This enormous differential in societal benefits is your compelling government interest in holding marriage above all other human relationships

The CA Four knew all of this. Their opinion is a fraudulent legal fig leaf to disguise bald judicial legislation. The reasoning merits an F, not a D.
 

Professor Koppelman,

I agree that the California court's rejection of the sex-based equal protection line of argument is a real problem, and I'm glad some blogger has finally started to write about this days and days after it came out!

However, I don't see what you find so problematic about the fundamental rights analysis. When the court addresses polygamy and incest at footnote 52, it makes it clear that, at a minimum, the state has a compelling interest that would overcome the strict scrutiny to which such restrictions on marriage rights are now going to be subject. Possibly there is also an additional broader argument implicit in the footnote that such unions have characteristics "inimical to the mutually supportive and healthy family relationships promoted by the
constitutional right to marry." But I think the court should (and probably will) stick with the more straightforward approach in the future: subject bans on incest and polygamy to heightened scrutiny, and allow those bans to stand because the state has a compelling interest in them.

The whole point of the fundamental rights analysis section of the opinion, contrary to your dismissive description above, is that no side of the marriage debate gets to win just by "defining" marriage their way. In the California opinion, the plaintiffs don't win because the California court simply defines marriage as a union of two people as you quote above. That's not enough. The plaintiffs win because the court engages in a serious, lengthy, substantive analysis of California's changed understanding of homosexuality (i.e. not an illness/perversion/etc.) and gay families, and ultimately concludes that the state lacks a compelling interest in restricting their marriage rights.

Arguing about what should be the "definition" of marriage, before starting one's analysis of the issue at hand, is the wrong game. (See also Mark Field's comment above.) What a court needs to do when confronted with a restriction on a fundamental right is subject the restriction to some kind of heightened scrutiny, and see if the state's interest passes muster. That is just what the court did here. I would hope that they would use the same framework (but come to a different outcome) when confronted with plaintiffs claiming a right to polygamous marriage or parent-child incestuous marriage. The state has a compelling interest in cases like that. Some states ban first-cousin marriage, and that's an area where the state's interest may or may not prove compelling; we'll see. But surely that is the right question to be asking!

Finally, it seems a little ridiculous for you to characterize the equal protection argument as "ultimately barely successful" when the main part of it, grating strict scrutiny for sexual orientation, is basically unassailable -- although no court has actually subjected sexual orientation classifications to heightened scrutiny before, you admit "no one can reasonably dispute" key elements of the logic. Obviously sexual orientation discrimination should, and eventually will, receive heightened scrutiny everywhere. Since this alone is enough to sustain the opinion, and since that section of the opinion will undoubtedly be the template for many future court opinions in other states that afford heightened scrutiny to discrimination against gays and lesbians, why do you call it "barely successful"?
 

Women convince men to engage in less risky behaviors and act more responsibly to support their family.
...there is no evidence that single sex combinations have the same effect.



Go look at the studies. Subscribe to the Journal of Marriage and Family or Family Relations. Read something other than Drudge before reaching your conclusions.

Studies of same-sex unions show that when men enter into a monogamous relationship, it causes them to act more responsibly. The seriousness of "marriage," as opposed to more open relationships, encourages family solidarity, promotes long-term stability, and provides role models for other same-sex couples. (See Porche and Purvin 2008; )

the ability of a marriage to economically sustain its children is simply applicable to homosexual unions.

Nice Freudian slip on the (in)"applicable." As of the last census, 33% of same-sex female and 22% of same-sex male couples reported at least one child under the age of 18 living in their homes. So, yes, it is absolutely applicable!

Homosexual unions do not produce children and there is no evidence that adding the term "marriage" to homosexual unions caring for the children of heterosexual unions produces any advantages for the children.

Yes, there is. Just because you don't look for it doesn't mean it isn't there.

Read this:
The Effects of Marriage, Civil Union, and Domestic Partnership Laws on the Health and Well-being of Children. Pediatrics Vol. 118 No. 1 July 2006, pp. 349-364

Civil marriage is a legal status that promotes healthy families by conferring a powerful set of rights, benefits, and protections that cannot be obtained by other means. Civil marriage can help foster financial and legal security, psychosocial stability, and an augmented sense of societal acceptance and support. Legal recognition of a spouse can increase the ability of adult couples to provide and care for one another and fosters a nurturing and secure environment for their children. Children who are raised by civilly married parents benefit from the legal status granted to their parents.
 

PMS:

Please summarize the precise methodology, populations and results in this paper:

"Never in Our Lifetime": Legal Marriage for Same-Sex Couples in Long-Term Relationships*
Michelle V. Porche & Diane M. Purvin

Sorry, I am not subscribing to this journal just to read this paper.

Given that the population of "married" homosexuals is so tiny and so new, I have serious doubts as to the scientific validity of any of the findings here.
 

I followed the link to your substantive philosophical argument and I didn't get the least bit worried about the arguments of the side opposing the same-sex marriage. If the natural law theory is the best they have, they may as well fold because that theory is extremely weak intellectually. Its central thesis is a textbook example of the fallacy of confusing "is" and "ought", and premises it relies on, such as those of intrinsic human goods, are nothing more than arbitrary assertions.
 

None of that matters. The entire question is whether or not to allow people to combine their genes with someone's of their same sex.

We don't have to wait to decide this question, in fact, it is much smarter to rule it out now than wait until someone tries it. You guys are all being derelict in avoiding this issue. Criminally negligent. I hope someone sues you all wasting everybody's time and money.
 

The CA Four knew all of this. Their opinion is a fraudulent legal fig leaf to disguise bald judicial legislation. The reasoning merits an F, not a D.

Bart, it's our court, not yours. If you want to criticize the Colorado Supreme Court's decision in Evans v. Romer, go ahead. But leave us alone. Whether and how we legalize gay marriage is none of your business. If you don't want gay marriage, don't enter into one.
 

no state should allow people to conceive with someone of the same-sex or do any genetic engineering of people, and no state should prohibit any marriages from conceiving children with their own gametes or prohibit anyone from marrying.
 

dilan:

dilan said...

BD: The CA Four knew all of this. Their opinion is a fraudulent legal fig leaf to disguise bald judicial legislation. The reasoning merits an F, not a D.

Bart, it's our court, not yours.


Its my court,
and it can make up law if it wants to
Make up law if it wants to,
Make up law if it wants to.
You would make up law too,
if it happened to be you!

Your argument makes for better parody than legal analysis.
 


Sorry, I am not subscribing to this journal just to read this paper.


Fair enough. Please refrain from saying things like "there is no evidence" until you've reviewed the literature, though.

I'll shoot you a PDF of this and any other article you like for the purposes of furthering a public debate. Just drop me an email with the request and I'll send them to you.
 

pms, all of the things in that paper would be equally true of CU's. Is Bart arguing against CU's that do not give the right to conceive children together? Maybe he is, in which case, Bart, read that paper. If he isn't, then that paper is irrelevant, and in fact the arguments work against SSM. Children of would not benefit from their legal parents having a right to attempt same-sex conception.
 

Andrew Koppelman, I assume, is an attorney.

His redaction of the Decision with syllogisms is TOO funny. Aristotle is friend of mine, Aristotle's syllogisms have not been used in logic since the Middle Ages.

This Decision is SO OBVIOUSLY simple and elegant, law scholars cannot decipher it, except with archaic logical redactions, that maybe Justice Thomas and Scalia might use, but none of the CA Court's Republicans. They apparently know mathematical logic, Leibniz's Law of Identity, and even the philosophy of language of nominalism, in which two NAMES are used for the SAME REFERENT, for the sole purpose of different CONNOTATIONS.

None of this is taught in law schools. None of it was argued before the Court (by the mayor's inept attorneys), rather, using logic and nominalism, these jurists circumvented the "equal protection" barrier of Scalia's Originalism, and decided on the simple elements of language and logic.

This decision is SO REFRESHINGLY honest, articulate, and "strictly constructed," law professors cannot decipher it. All of Andrew Koppelman's syllogisms and premises are irrelevant to the case at hand. But pour out more legal scholarship, so that other attorneys of irrelevant thinking and archaic logic will MISS THE POINT, but don't expect Scalia or Thomas to catch up -- they are AHEAD of Koppleman. The California Court is not even in their history.
 

Bart De Palma wrote:-

(a) “the very concept of substantive due process is a contradiction in terms and has traditionally been a license for unconstitutional judicial legislation”
(b) “the CA Four apply a further fraudulent bait and switch syllogism”
(c) “their opinion is a fraudulent legal fig leaf to disguise bald judicial legislation”

Bart, my dear chap,

You hold yourself out elsewhere on this blog as “a criminal defence attorney”. As a member of the bar, you are a gentleman by virtue of your call to the bar, if not for any other reason. Gentlemen, you know, do not make accusations of fraud against people who by virtue of their position cannot answer back.

You, make a number of assertions in purported justification of the serious allegations you make against the jurists who wrote the majority opinion in issue. As usual they do not stand up to any kind of scrutiny, whether strict or deferential.

You begin with a premise: “The purpose of marriage is to provide ordered families”..

With respect, that may be one (not the sole) purpose of some (not all) marriages. Not even the Christian tradition asserts that procreation is the sole purpose of marriage. See the words of the preface in the Anglican marriage service:

“Priest: The Bible teaches us that marriage is a gift of God in creation and a means of his grace, a holy mystery in which man and woman become one flesh. It is God's purpose that, as husband and wife give themselves to each other in love throughout their lives, they shall be united in that love as Christ is united with his Church. Marriage is given, that husband and wife may comfort and help each other, living faithfully together in need and in plenty, in sorrow and in joy. It is given, that with delight and tenderness they may know each other in love, and, through the joy of their bodily union, may strengthen the union of their hearts and lives. It is given as the foundation of family life in which children may be born and nurtured in accordance with God's will, to his praise and glory.

In marriage husband and wife belong to one another, and they begin a new life together in the community. It is a way of life that all should honour; and it must not be undertaken carelessly, lightly, or selfishly, but reverently, responsibly, and after serious thought.”


But these are, as you well know, religious criteria applicable to marriage qua sacrament and not to marriage qua civil law contract. As I have pointed out elsewhere, in Anglo-Norman jurisprudence the common law kept well away from marriage other than as a contract between the parties.

The state has an interest in promoting civil unions of all kinds. Examined dispassionately, such unions may promote not just the creation of children (which the state often favours with tax reliefs or other incentives) but for the very good tax saving reason that people who care for their partners in old age and sickness relieve the state of a very considerable welfare burden – and there is therefore quite a societal interest in also promoting same-sex unions with fiscal and other advantages.

But the real societal interest is that of equality and non-discrimination. Just as the law has evolved so that married women are no longer regarded as their husband’s property so has the law come to regard sexual orientation as a suspect reason for discrimination.

Such societal attitudes as America has (pace the First Americans, such as the Crow and Sioux Nations) originate largely from Europe so you should remember the well known anecdote of the the Austrian Countess speaking of marriage to her son.
Countess: “Rudi, your Poppa and I have been thinking it is time you should get married. We have decided you should marry Maria- Teresa. She is of genteel family, she will give you healthy children, her dowry will be substantial and her family’s lands march with ours”.
Rudi: “But, Mutti, I do not wish to marry Maria-Teresa, I want to marry Franz.”
Countess: “Dearest boy, you cannot marry Franz!”
RudI: “Why Mutti dearest ?”

Countess: “Because Franz is a protestant, you foolish boy!”

There are always reasons for discrimination and I accept that people like you would like to put the clock back, preferably to about 1500. But, please don’t dress up your bigotry with pseudo-science or pseudo-law.

Just as slavery has been abolished in the USA, just as women have been given the vote and equal rights, just as racial discrimination has been made illegal, the other forms of abuse of human rights for which you advocate will be tacked too – even in Colorado. Like King Canute, you cannot stop the tide coming in.

Why not relax and enjoy the salt water lapping around your feet.
 

"no state should allow people to conceive with someone of the same-sex or do any genetic engineering of people,"

Um, why?
 

Bart said:

"One has to apply the Balkin approach to originalism and generalize the definition of marriage until it is almost meaningless - the union of two loving human beings"

Union of two loving human beings. Pah. What does that have to do with the pursuit of happiness?
 

Feh. What kind of argument is that? Lots of things have to do with the pursuit of happiness, without being marriage.

Lame arguments abound on this subject, on both sides. For my part, my only real complaint is with judges imposing policy changes which really ought to arrive by way of the policy side of the government, or popular initiative. This is a result, I think, of a conscious change in tactics among 'liberals', from trying to win by persuading the public, to trying to win by persuading judges.

Sure, the latter route can be faster than trying to change public opinion to agree with you, but it's fraught with danger, since the public can get remarkably restive when unpopular change is imposed from above.

Not to mention that, when you empower the judiciary to thwart the popular will in a 'liberal' direction, you empower them to thwart it in an illiberal direction, too. All you need to do is lose control of the courts, and your own carefully crafted weapon will be used against you.
 

"no state should allow people to conceive with someone of the same-sex or do any genetic engineering of people,"

Um, why?


So that all people are created equal and we aren't forced to turn to a government regulated industry to have children, and everyone's right to have natural children is preserved.

If even one state offers GE or same-sex conception services, that would start the slide down the slippery slope that people would feel forced to get on, and eventually all the other states and other countries too would have to keep up with that one state.

This is an international issue. The US should join other countries and the UN in banning GLGE and preserving natural conception rights. So this can't be left up to the states, the federal government has to make a federal law to ban modified gametes.
 

mourad:

1) Unlike some others I could name, I do not causally use terms like "fraudulent." However, when I do, I back it up with a rather lengthy post demonstrating why I used the term. For the reason's I gave, the reasoning of the CA Four is fraudulent because it involves a bait and switch which would be criminal under CO law if done by a car dealer.

2) Marriage has many purposes, but I restricted myself to the ones which provide societal benefit. The foremost of these for the reasons I posited is to provide ordered families. This includes not only creating children, but more importantly raising civilized children.

3) The fact that marriage is also a gift from God is irrelevant to our analysis of how to define civil marriage. My argument is completely secular.

4) Marriage is not necessary for homosexual partners to take care of one another.

5) For the reasons I provided above, your generic discrimination argument does not work under EPC analysis. Rather, this argument should be offered to the People and their representatives in an effort to persuade them to redefine marriage.

6) Your bigotry epithet smacks of desperation. You curse where you cannot prove the merit of your argument.

7) I see no tide outside of elite circles for the redefinition of marriage to include homosexual unions. The People, when allowed, have voted it down every time. If that changes over time and the People redefine marriage, so be it. We live in a democratic republic. However, I take offense to unelected judges unlawfully taking that decision away from the People.
 

"So that all people are created equal and we aren't forced to turn to a government regulated industry to have children, and everyone's right to have natural children is preserved.

If even one state offers GE or same-sex conception services"


All people are created equal in a moral sense, we've never been created equal in the sense of endowments. And human genetic engineering being legal scarcely constitutes forcing people to engage in it, or implies states offering such services
 

It's more than a moral sense, it's a moral sense based on the physical truth that we are all created the same way, as the children of two people who had no control of how we'd come out, we are all just children of our parents. That's where the basis of our moral sense of equality comes from. If people start creating people unequally, where some are genetically manipulated and others are not, people will start to scoff at the significance of the moral sense of equality, it will be no longer be true. To maintain the basis of our laws and rights, we must maintain the equality of our creation.

But that is not something I need to prove, and indeed if we did start creating genetically enhanced people, I would be arguing the other way, saying that we were still created equal and all God's children. It'll just be hard to get people to agree. They'll likely start taking it literally, saying that unless we are all genetically modified with the same enhancements, we are not created equal.

There are other reasons why we should not any lab in any state start offering to create people using genetically modified gametes besides the threat to the source of equality. The cost and energy footprint of developing and researching it, including the unethical killing of animals to experiment on, is unjustified in the face of existing people that need basic health care and nutrition. And it would certainly put enormous pressure on everybody to have their gametes screened and modified, to the point that the right to use their natural gametes would be meaningless and scoffed at, kind of like the right of a gay person to marry someone of the other sex is scoffed at these days (but which hopefully will be respected and valued again).
 

kind of like the right of a gay person to marry someone of the other sex is scoffed at these days (but which hopefully will be respected and valued again).

# posted by John Howard : 2:15 PM


It's their right to marry someone of the SAME sex that is being scoffed at, not the opposite sex.
 

Its my court, and it can make up law if it wants to

Bart:

1. You don't know the first thing about the meaning of the California Cnstitution. So stop whining about whether the Court was making up the law. Since you don't know what the law is here, you aren't qualified to comment on the decision.

2. Even if the California Supreme Court engaged in legal reasoning you disagree with, that is the Court's right. You see, we have judicial retention elections here, and if we don't like our court, we can kick them out of office. But it's our decision. Bigots from Colorado have no say.
 

bartbuster, I mean, look at the reaction I get when I tell a gay guy that he does have the right to marry, as long as he chooses a woman. He will scoff that that right is meaningless. People often say that "gay people" do not have the right to marry and ought to have the right to marry, and gay people never correct them that they do in fact have the right to marry. Only "bigots" would point that out.

That is what would happen with the "right" to use one's own substandard, non-enhanced gametes, people will act as if it doesn't exist, it will be meaningless.
 

bartbuster, I mean, look at the reaction I get when I tell a gay guy that he does have the right to marry, as long as he chooses a woman. He will scoff that that right is meaningless

Sorry, when you said "the right of a gay person to marry someone of the other sex is scoffed at these days", and I replied that it isn't, I thought you were referring to bigoted scum like yourself. Of course gays are going to scoff at that "right".
 

SOS:

Marriage is demonstrably the cornerstone of civilization on three levels:

1) Marriage civilizes men, allows them to live longer and be more productive.

Women convince men to engage in less risky behaviors and act more responsibly to support their family.

The woman man combination is obviously not present in homosexual unions and there is no evidence that single sex combinations have the same effect.

2) Marriage allows child bearing women far greater economic resources to take care of the resulting family.

Homosexual unions do not produce children. Thus, the ability of a marriage to economically sustain its children is simply applicable to homosexual unions.

3) Marriage creates and raises the most adjusted children to establish the next generation.

It is well established that married heterosexual couples are twice as likely as divorced couples and even more likely than single parent families to produce educated, non criminal and socially adjusted children.


I recall a while back that some wise solon here said: "No matter how learned my correspondent, I do not accept bare assertions as undisputed fact." My memory is playing tricks on me again, now who was that? Anyone have a clue as to who said that?

Of course, we have the full panoply of objections to these claims, outside of the truth of such, including the obvious ones that we put no limits on the marriage of those that are infertile (and "Bart" has nowhere insisted that such new rules be instituted post-haste), and the more fundamental one; that we confer or recognise rights not because they benefit society, but because they ARE RIGHTS OF THE INDIVIDUAL.

If it's measure of worth to society that is the sine qua non for existence, I vote we terminate "Bart" immediately. And all the drunks in Colorado Springs be damned....

Cheers,
 

dilan:

You don't know the first thing about the meaning of the California Cnstitution. So stop whining about whether the Court was making up the law. Since you don't know what the law is here, you aren't qualified to comment on the decision.

Save the parochial legal snobbishness for someone who cares.

I note that you do not offer any legal authority to defend the opinion of the CA Four. However, I will ask anyway...

Please feel free to enlighten us all by offering the text of the California Constitution which makes homosexual marriage a fundamental right or California precedent finding either the implied fundamental right of marriage was defined to include homosexual unions or that homosexual marriage itself is a fundamental right.

I am sure that you can do so, right?
 

"Bart" DePalma:

Your argument makes for better parody than legal analysis.

One might say that your unsupported and bald assertions, combined with a total lack of even any logical coherency or legitimate legal analysis, are a far better parody. Your dismissal of cites that others provide because you don't want to read (or believe?) them is just frosting on the cake.

But glad we got your panties all in a bunch there. Better check under the bed for gays tonight, along with those Islamofascist Terraists hiding down there....

Cheers,
 

"Bart" DePalma:

For the reason's I gave, the reasoning of the CA Four is fraudulent because it involves a bait and switch which would be criminal under CO law if done by a car dealer.

One problem is that the alleged "bait and switch" is just a 'straw man' of your own construction. You have done nothing to show otherwise. As such, can we then reasonably attribute the fraud here to you?

Cheers,
 

Typo:

3) The fact that marriage is also a gift from God is irrelevant to our analysis of how to define civil marriage. My argument is completely secular.

Should be "circular". Really.

Cheers,
 

Some lame troll:

... look at the reaction I get when I tell a gay guy that he does have the right to marry, as long as he chooses a woman.

Do they cite Loving v. Virginia back at you, where a unanimous U.S Supreme Court rejected that very same sophistry when it was put forth by the Commonwealth of Virginia?

Cheers,
 

May I kindly point out that "marriage" is more than just the Christian definition?

For example, I'm American Indian. There is ample evidence that we allowed same sex marriages within the context of our cultural definition of the term. Those unions had the same rights and responsibilities as any other union.

In fact, we believed in a much more expansive system of individual liberty than Europe or the colonies had ever conceived.

We were here for millennia before Europeans stumbled onto the scene. Surely it is sophistry to suggest that in this land that marriage is only defined as the sort that the Euro-Christians say it is.

At best it is extremely colonialist and condescending to other cultural beliefs and practices. At worst it is religious prejudice incorporated into the law in violation of the first amendment.

In fact, there is some evidence of the early Catholic Church blessing same sex marriages in Europe. It was in the early centuries of the Dark Ages that the Church expunged same sex unions from its liturgy about the same time it created misogynistic theology where there was none before.

So let's not be xenophobic - let's acknowledge that there is room for understanding that same-sex marriage is not a brand spanking new concept and that European law and history is not the only official version for the world, much less the United States.

Consider this. What if a tribal legislature found that as a fundamental right based on traditional culture and traditional religious beliefs, same-sex unions should be recognized as valid and legal marriages as they always were before the U.S. government violated the first amendment and forced us to convert to Christianity or at least drove our traditional religions underground?

(Note, the establishment clause does not apply to Native American governments under the ICRA, but does apply to federal actions against the tribe or its members.)

Let's say that the tribe starts allowing gay marriages and the BIA tries to force the tribe to stop under pressure from social conservatives.

How could the Supreme Court find that tradition forces the tribe to abandon its historical and traditional religious beliefs and practices without violating the establishment clause itself?

In this example, aren't Judeo-Christian values nothing more than Christian religious beliefs encoded into law by the legislature?

You can't say that traditionally marriage was defined as one man and one woman in this context because history and tradition within the tribe are very different.

Indeed trying to find a way to enforce Christian mores on the tribe ends up being an establishment clause violation in just about any way one tries to justify it.

Don't get me wrong, the Supreme Court has found ways around the logical and right thing to do throughout its history where Native Americans are concerned. It could do it.

But I don't think anyone can accurately say that the tradition in this country has always been marriages that consist of one man and one woman.

For thousands of years before and throughout U.S. history, some cultures have continued to believe and practice otherwise.
 

Bart wrote: Please feel free to enlighten us all by offering the text of the California Constitution which makes homosexual marriage a fundamental right

But Bart, the court decision didn't say that there was a right to homosexual marriage. They were very clear that they weren't saying that, that the only question before them was regarding the name. And they rightly concluded that having a different name for something with the same rights is discriminatory and stigmatizing. So this decision made perfect sense. The problem was that the legislature gave equal rights to same-sex couples. The court didn't do that, they merely pointed out that CU's that are exactly like marriage like Obama and Clinton support and some states have are worse than dumb, they don't work legally.

So, they did us a great favor by making us ask if people should have the same rights with a person of their same sex that they have with a person of the other sex. They will force the candidates to get specific about what the different rights should be, instead of continuing this meaningless tap dance regarding the name to use.

By the way, Bart, do you read my posts? I notice that you never seem to acknowledge what I am saying, and I'd be interested in your opinions regarding my efforts.
 

Bart de Palma wrote:-

“For the reason's [sic] I gave, the reasoning of the CA Four is fraudulent because it involves a bait and switch which would be criminal under CO law if done by a car dealer.”.

My dear Bart,

Since I did not recognise “bait and switch” as either a forensic term or an expression in common English (as opposed to American) usage, I had to resort to Wikipedia where I discovered that it is defined as ” a form of fraud in which the party putting forth the fraud lures in customers by advertising a product or service at an unprofitably low price, then reveals to potential customers that the advertised good is not available but that a substitute is”. One learns something every day.

You also wrote: ”We live in a democratic republic. However, I take offense to unelected judges unlawfully taking that decision away from the People.”.

Ignoring for the moment the fact that in California, there are retention elections for judges, the founding fathers of your republic in their wisdom well knew that the judicial branch must not be subjected to the influence of fickle public opinion. So they opted for presidential appointment by and with the consent of the senate as the best procedure for making wise appointments and for immovability save by process of impeachment, precisely because they well knew that the judicial function requires judges to be immunised against political and “public opinion” pressure.

It was the proper function of the court to decide whether the legislation was constitutional. I am quite sure that the Court would have preferred not to embark on such a contentious subject – on the whole judges prefer a quiet life. But the parties came into court and it was the duty of the court to give them due process. The length of the proceedings and the quality of the decision demonstrates that the Court did their collective duty conscientiously.

Whether you, I and others like it or not, the constitutionality of the California law has been determined. The people of the state have their remedies: constitutional amendment, impeachment, or the retention elections.

Since Colorado Springs is home to so many organisations on the lunatic fringes of the evangelical movement, I expect that Focus on the Family and the rest will be involved in “missionary activity” to pressurise Californians into supporting a constitutional amendment. Will you be taking time off from your DUI cases and fraudulent car dealers to travel down to California to “fight the good (as you see it) fight” ? I do hope so: like Saul on the road to Tarsus, you may have an “enlightenment event” on the way.

Turning now to your allegations of fraudulent conduct by the bench. I don’t suppose fraud comes up too often in your DUI specialisation, but I suppose you are well aware from your more general criminal and civil practice, that fraud requires mens rea.

Anyone is entitled to criticise a judicial decision on the grounds that the reasoning is flawed. But for a lawyer to accuse any supreme court bench of conduct of which an essential component is dishonesty, is not just hyperbole, and bad manners. No lawyer should do so without the clearest proof because in so doing he brings the justice system into disrepute and that adversely affects the legal profession in general.

I note that on your web site (depalmalaw.com) you describe yourself as “Bart DePalma, Esq”, so you claim to be a gentleman. Apart from the technical point that no gentleman describes himself as “Esquire” (he waits for others to accord him the honorific), no gentleman accuses others of dishonest conduct without proof, especially when the others are judges of the distinction of those who grace the California Supreme Court bench.

Your assertions do not constitute forensic argument, they are at the level of a very bad address to a particularly dense jury - an ill crafted appeal to prejudice.
 

This comment has been removed by the author.
 

bartbuster: Of course gays are going to scoff at that "right".

right, that's my point. A right to do something that you don't want to do is rather meaningless. So the right to use your own genes when you want to use the better genes being offered by the lab is meaningless. This is the basis of so-called "liberal eugenics", that people will just want to use better genes due to the principle of "procreative beneficence", that causes people to choose what is best for their children. So all they have to do is convince people that using better genes is better for their children, and people will choose it, even though they still have the "right" to use their own genes. But they eschew that right, for the same reason gays eschew the right to be straight. It may as well not exist.

btw, you won't see me saying that gay men should try to love women, I think it is too late for that, and that's why I support CU's with equal protections and respect, which I think gay couples deserve and need, right now. It bothers me that gay couples do not have equal protections in many states or federal recognition. That much was promised to kids and young adults by society and government, and we should fulfill that promise. But society never promised same-sex conception, so we don't need to fulfill a promise we never made, and we shouldn't promise it now.

(and arne, try trying to understand what I'm saying. You just illustrated the phenomenon for me, while point i was making about it sailed over your head. this is probably sailing over your head too.)
 

john howard said...

By the way, Bart, do you read my posts? I notice that you never seem to acknowledge what I am saying, and I'd be interested in your opinions regarding my efforts.

I'm sorry, I have to admit that I haven't been reading your posts. I am trying to balance running a law firm, spending time with my wife (I do take marriage seriously, it is not a pose), keeping up with my reading, posting at my own blog and posting here in about that order of importance. As a consequence, I tend to only read the lead posts here and any posts reacting to my response.

[This is why I find amusing accusations that I am trying to dominate this blog. Rather, I simply try to extend the courtesy of responses to those who care to address my arguments seriously. Sorry arne and bb, that does not include you.]

Since you were kind enough to ask for my opinion, I will take a gander at your posts this evening.
 

John:

You may have posted this on a different thread. If so, I apologize that I do not have the time to go look for it.

Precisely, what type of genetic manipulation are you arguing should be prohibited? I do not have a great deal of background in this area and thus cannot tell from your posts on this thread.

Thanks in advance.
 

An opinion many here like gets at best a "passing" grade. But, many of the comments are not in response to the post, but to the usual suspect(s). Ok.

The Court's gender argument was pretty weak. It seemed to amount to tradition -- hey there is sex and sexual orientation discrimination.

That is a bit ironic really given that common understanding (and what other states do) wasn't enough for the opinion as a whole.
Stereotypical sex roles is part of the issue here. Weak if maybe pragmatic section.

The section on strict scrutiny for homosexuals ... I assume the professor here supports that section. [OTOH, some find it hard to oppose discrimination by sexual orientation and not bring in brother and sisters marrying each other ... in plural marriages.]

Okay, the D+ has to be a result of the lousy marriage section.

But, is it really lousy? Part of the argument was based on marriage precedents in that state that discussed marriage in broad terms ... not male or woman, but marrying the person of your choice.

he various aspects of "marriage" was discussed, why it is a fundamental right. It wasn't because a man and woman married each other. In this fashion, section one and three join together.

Mark Field is correct too. I give the ruling a B, adding up all the points. The gender section very well might be a pragmatic compromise anyway, which quite often weakens opinions in some ways.
 

Mourad:

Apart from the technical point that no gentleman describes himself as “Esquire”....

I remember from my Boalt Hall days the influx of a couple of conservative wackos into the audiences when there were speeches given. One of the more notorious was a "hidden Thirteenth Amendment" person (who also claimed that Sixteeth was invalid, so as to right the count for the later ones). These "hidden Thirteenth" nutjobs, like their "sovereign citizen" cohorts (that gave us such stuff as the "Freemen" out in Montana, and others that refuse to pay taxes), just go to show that a "little Constitutional 'law'" (and a lot of manufactured 'history') are a dangerous thing for small minds. In any case, the "hidden Thirteenth" folks claim the gummint is invalid, since it's replete with lawyers, and lawyers take the title "esquire", which these loons claim is a "title of nobility", thus constitutionally disqualifying all such from offices in gummint.

Cheers,
 

"Bart" DePalma:

Rather, I simply try to extend the courtesy of responses to those who care to address my arguments seriously. Sorry arne and bb, that does not include you.

Sorry you feel that way, "Bart". But that foofrah you just emitted surely is a great excuse to avoid answering substantive objections (or even procedural ones, such as when you duck requests for cites to back up your bare assertions). Being too "busy" works wonders when you neglect to address an objection; I'm quite sure it served you well in law school. It may even suffice for your law practise, seeing as you're just taking money from people caught dead to rights DUI, and the best they can do is plead hardship to keep their licenses for purposes of travel to work. In the field of DUI, there's not a lot of legal wrangling to be done (unlike, say, Glenn Greenwald's work), so I'm sure it fits your aptitude and abilities.

But don't mind me, "Bart": I'm quite capable of mercilessly ridiculing your 'arguments' here, and showing you for the fool, whether you choose to respond or not (and regardless of the excuses you come up with for not doing so).

Cheers,
 

Sorry arne and bb, that does not include you.

Ridiculing your stupidity is just as much fun when you don't respond as when you do.
 

Precisely, what type of genetic manipulation are you arguing should be prohibited?

Thanks for asking Bart. I'm arguing all genetic manipulation should be prohibited, that people should only be allowed to use unmodified gametes, their own egg or sperm. Germline genetic engineering, cloning, and same-sex conception would be prohibited by this. It is possible that we could deal with all of these issues separately, allowing genetic modification to correct certain genetic defects, and prohibiting modification to make "female sperm" or "male eggs", because in many ways they are polar opposites in intent and effect. One is designed to reduce risk, the other increases risk, one is fraught with "designer baby" issues, the other is quite random. So they could be handled separately, and we could focus only on the right to attempt the genetic manipulation necessary to accomplish same-sex conception. But I think we need to prohibit both, we need to preserve natural male-female sexual reproduction to preserve every person's right to conceive with their own genes. It also makes for a stronger argument in that it doesn't single out same-sex conception and imposes the same burden on everybody, regardless of their orientation.
 

Please feel free to enlighten us all by offering the text of the California Constitution which makes homosexual marriage a fundamental right or California precedent finding either the implied fundamental right of marriage was defined to include homosexual unions or that homosexual marriage itself is a fundamental right.

Bart, gay marriage isn't a fundamental right in California. Rather, marriage is a fundamental right, for straights or gays. The Court cited ample precedents in the opinion for that.

Further, the equal protection clause of the state Constitution is plausibly intrepreted, in light of our tolerant values and disdain for anti-gay bigotry, to protect sexual orientation as a suspect class.

Stop telling California what to do. It's really none of your business and Californians don't care what bigots in Colorado think of our laws and our courts. In fact, the fact that our court decisions are condemned by homphobic fundamentalist religious nuts in Colorado is a sign that we are doing something right.

So stay in Colorado and continue hating gay people. But stop trying to force your views on Californians.
 

dilan said...

Please feel free to enlighten us all by offering the text of the California Constitution which makes homosexual marriage a fundamental right or California precedent finding either the implied fundamental right of marriage was defined to include homosexual unions or that homosexual marriage itself is a fundamental right.

Bart, gay marriage isn't a fundamental right in California. Rather, marriage is a fundamental right, for straights or gays. The Court cited ample precedents in the opinion for that.


You are intentionally ignoring the question I posed.

As I observed from the outset, the CA Four engaged in a bait and switch syllogism:

1) Marriage is a fundamental right.

2) Homosexual unions are marriage.

3) Homosexual unions are also a fundamental right.

The fallacy in this fraudulent syllogism is that the CA Four knew damn well that the marriage found to be a fundamental right was ALWAYS defined as the union of one man and one woman. There is no precedent for either defining marriage to include homosexual unions or for the proposition that homosexual "marriage" is a fundamental right.

Thus, I challenged you to provide precedent either finding a definition of marriage which included homosexual unions to be a fundamental right or finding that homosexual "marriage" to be a fundamental right.

If the marriage which has previously found to be a fundamental right included homosexual unions then there would be no issue before the CA Court. Homosexuals could simply get married. However, as the CA Four and you know perfectly well, this was not the case. The marriage found to be a fundamental right did not include homosexual unions.

Further, the equal protection clause of the state Constitution is plausibly intrepreted, in light of our tolerant values and disdain for anti-gay bigotry, to protect sexual orientation as a suspect class.

Given that a majority of the legislators in both CA and MA have ignored the opinion of the heavy majorities of their voters against redefining marriage to include homosexual unions and instead voted to do so, one would have a hard time arguing that homosexuals supporting this redefinition are a powerless suspect class. Proponents obviously have disproportionate political influence.

Stop telling California what to do.

Taking to task the outlaw ruling of the CA Four is hardly telling the millions of CA citizens what they can and cannot do. I have confidence in the People of CA to reverse this travesty implemented by four.

Finally, throwing the bigot epithet is simply a further indication of the bankruptcy of your legal argument.
 

John:

Thank you for restating your argument for my benefit. In general, I tend to agree with you. But, I reserve the right to take our brave new world one case at a time.

You appear to have given this issue a great deal of thought. so let me posit a question to you.

Recent studies involving fruit flies indicate that a relatively minor genetic manipulation and turn hetero and homosexuality on and off in the studied population. This raises the possibility that human parents could be offered an in vitro test and a genetic therapy to eliminate homosexuality in their children. Perhaps, adult homosexuals could be offered a similar genetic therapy to become heterosexual.

Would you support this kind of genetic manipulation under your theory? If so, why?
 

Dear Arne:

You wrote: "...and lawyers take the title "esquire", which these loons claim is a "title of nobility", thus constitutionally disqualifying all such from offices in gummint."

How delighful! Did anyone bother explaining to them that the nobility and the gentry are two different concepts and that there are many of the nobility who do not qualify as gentlemen - Conrad Black for example.

Judicial titles do sometimes cause some problems. The Supreme Court Act 1981 originally only provided for "Lords Justices of Appeal". But women eventually broke through the glass ceiling and...

Practice Note from the Master of the Rolls: "Since 1988, the Court of Appeal has enjoyed the great benefit of including among its members Dame Elizabeth Butler-Sloss.

Formally, she has been a Lord Justice of Appeal and is required to be so styled by s 2(3) of the Supreme Court Act 1981 unless and until that section can be amended. But she has, when sitting in court, been addressed as 'My Lady', as she was when sitting as a puisne judge, and as other female puisne judges are addressed.

This has led counsel, when referring to her in court, to adopt the usage 'My Lady, Lord Justice Butler-Sloss'. This usage is plainly absurd.

Nothing can for the time being be done to alter the formal position, but for informal purposes it is desirable that reference should be made to Lady Justice Butler-Sloss, so that she will be referred to in court as 'My Lady, Lady Justice Butler-Sloss'.

This change has the support of Lady Justice Butler-Sloss, and also of the Lord Chancellor. No offence will be taken if counsel or solicitors slip into the old usage; but it would be regarded as a courtesy if the new were adopted."
 

"Bart" DePalma:

For the third and last time:

As I observed from the outset, the CA Four engaged in a bait and switch syllogism:

1) Marriage is a fundamental right.

2) Homosexual unions are marriage.

3) Homosexual unions are also a fundamental right.

The fallacy in this fraudulent syllogism is that the CA Four knew damn well that the marriage found to be a fundamental right was ALWAYS defined as the union of one man and one woman. There is no precedent for either defining marriage to include homosexual unions or for the proposition that homosexual "marriage" is a fundamental right.


Your "observation" from the outset is wrong.

Here's the Califonia Supreme Court:

"It also is important to understand at the outset that our task in this proceeding is not to decide whether we believe, as a matter of policy, that the officially recognized relationship of a same-sex couple should be designated a marriage rather than a domestic partnership (or some other term), but instead only to determine whether the difference in the official names of the relationships violates the California Constitution."

In re: Marriage Cases [emphasis in original]

They did nothing of the sort you say they did. They expressly denied doing what you claim they did. Any "fraud" here is entirely yours.

You may ignore the published text of their decision, but that just makes you the fool (or the liar, as the case may be; neither goes to your credit, which is rather threadbare as it is).

When you're ready to face reality and discuss actual facts, rather than your "straw men" (or hallucinations), let us know.

Cheers,
 

There is no precedent for either defining marriage to include homosexual unions or for the proposition that homosexual "marriage" is a fundamental right.

Sure there is. Massachusetts.
 

Mourad:

Dear Arne:

You wrote: "...and lawyers take the title "esquire", which these loons claim is a "title of nobility", thus constitutionally disqualifying all such from offices in gummint."

How delighful! Did anyone bother explaining to them that the nobility and the gentry are two different concepts and that there are many of the nobility who do not qualify as gentlemen - Conrad Black for example.


Please don't ask me to explain wingnut 'thinking' (or to 'cure' anyone of such via explanation; witness, e.g., "Bart" and "John Howard" here; better people than I have attempted it [see my link above, which references court cases slapping down these nutjobs, as well as linking to some of their screeds and also pages refuting such]). The link mentions your objection that "esquire" is not a title of nobility, but far be it from them to let facts get in the way of a good 'argument', particularly when they have a pecuniary interest in declaring taxes and the federal gummint itself illegal.....

I just thought it worth a chuckle, seeing as the "Bartster" here has his ideological fellow travelers on the ERW decrying the very title he choses to affect.

Cheers,
 

arne:

Most perpetrators of fraud deny that they are committing fraud. However, there is no other way to more charitably explain the CA Four's misrepresentation of the precedent finding marriage to be a fundamental right.
 

Most perpetrators of fraud deny that they are committing fraud.
Of which your posts are fantastic examples....

However, there is no other way to more charitably explain the CA Four's misrepresentation of the precedent finding marriage to be a fundamental right.

# posted by Bart DePalma : 4:43 PM


Baghdad, they did nothing of the kind. I'm going to try and dumb it down so that even you can understand it. The court concluded that the different terms for gay vs. non-gay partnership is a violation of the CA constitution. This means that the state of CA has 2 choices. Get out of the marriage business, or change the term for "gay partnership" (or whatever they call it) to marriage. The court did NOT decide that gays had a fundamental right to marriage.
 

"Bart" DePalma:

[to Arne]: Most perpetrators of fraud deny that they are committing fraud....

Or they just ignore the charge and move on to new threads as if nothing had been said against them.... ;-)

... However, there is no other way to more charitably explain the CA Four's misrepresentation of the precedent finding marriage to be a fundamental right.

Look, "Bart", I quoted you from the decision as to what they said the issue was (and what it was not). Your mischaracterisation persists despite the fact you've been told at least three times that they didn't say what you claimed they said (and, in addition, my quote shows that they had no intention of doing anything like what you said they did).

If you want to keep insisting that your "bait and switch" characterisation holds, you need to quote from the decision as to where they made anyy of the claims that you attribute to them. As one wise solon once said, "No matter how learned my correspondent, I do not accept bare assertions as undisputed fact."

Now out with it, or just STFU with your silly hallucinations. Please. For the sake of a little honesty in your posts, no matter how small.

Cheers,
 

Would you support this kind of genetic manipulation under your theory? If so, why?

No, Bart, of course not! I wouldn't support any kind of genetic manipulation, and it's especially creepy if it is intended to manipulate the feelings and desires of the person being created.

Would you support that kind of genetic manipulation? I think you should read Enough and Brave New World and watch Gattaca again. Offhand, people often imagine the benefits of genetic engineering, they see the injustices and suffering caused by genetic disease, and feel 'wouldn't it be great to be able to prevent that?' It is a very understandable feeling, but it's not fully formed, it is mere sentiment, getting in the way of prudent thought. First of all, when you see sick people, that person will not be helped by genetic manipulation. Rather, they will be hurt, because the resources that would go to helping them and perhaps curing their disease go instead to figuring out how to not have children like them. With rich people not having children like them, fewer people are going to care about curing their disease. And yet people will continue to be born with their disease, because only the privileged using IVF will be able to avoid having those children. We couldn't actually "eradicate" a disease without bringing all reproduction under the control of genetics labs and not letting any people conceive naturally.

I hope you think about it more and recognize that your one-case-at-a-time strategy is a full-bore, bring it on stance. I mean, of course it will happen one case at a time, it's not all going to happen at once. The question is, do you want to go there, or go somewhere else, where natural conception is protected and our resources go toward health care instead of designer babies.

Please think about this, because if you are on the side of allowing genetic manipulation, then you wind up having to be for allowing same-sex conception, and if you are for allowing same-sex conception, then you really ought to insist on same-sex marriage.

If you are against same-sex marriage, then you ought to oppose same-sex conception, and if you oppose same-sex conception, then you ought to oppose all genetic engineering and believe that people should only have a right to conceive with someone of the other sex.
 

Prof. Koppelman's post suggests that the decision was rank judicial activism and it was shoddily done judicial activism to boot. All reasons to vote to overturn the decision in November.
 

pms_chicago said...

BD: Women convince men to engage in less risky behaviors and act more responsibly to support their family...there is no evidence that single sex combinations have the same effect.

Studies of same-sex unions show that when men enter into a monogamous relationship, it causes them to act more responsibly. The seriousness of "marriage," as opposed to more open relationships, encourages family solidarity, promotes long-term stability, and provides role models for other same-sex couples. (See "Never in Our Lifetime": Legal Marriage for Same-Sex Couples in Long-Term Relationships* Michelle V. Porche & Diane M. Purvin)


Thank you for emailing me the article. However, this study involved only 9 couples over one year, not all of whom decided to enter into Mass' civil marriage. This is a statistically insignificant number and period of time. At best, one might be able to call this spotty anecdotal evidence. More importantly, I could not find an anecdote in this paper which directly addressed my point.

BD: Homosexual unions do not produce children and there is no evidence that adding the term "marriage" to homosexual unions caring for the children of heterosexual unions produces any advantages for the children.

Yes, there is. Just because you don't look for it doesn't mean it isn't there.

Read this: The Effects of Marriage, Civil Union, and Domestic Partnership Laws on the Health and Well-being of Children. Pediatrics Vol. 118 No. 1 July 2006, pp. 349-364


Once again, thank you for providing the paper. However, the section concerning child development in homosexual households does not address the effect of extending civil marriage to homosexual unions because the phenomenon was brand new when this paper was published.

Indeed, the studies which are provided reinforce my thesis. The children raised by homosexual couples are overwhelmingly the products of broken homes with the same associated problems suffered by all children from broken homes. Thus, it is highly unlikely that the development of children raised by homosexual couples, married or not, will match the development of children raised in married heterosexual households by their biological parents.

Once again, marriage is the the ideal situation for raising civilized children because the products of broken homes and single parents have far more problems. Homosexual unions cannot produce their own children and thus cannot duplicate this ideal. At best, homosexual couples can adopt the children produced by heterosexual couples and who subsequently have then been abandoned by one or both biological parents.
 

"Proof by assertion" (n phrase): One of "Bart"'s utterings. See, e.g.: "Indeed, the studies which are provided reinforce my thesis. The children raised by homosexual couples are overwhelmingly the products of broken homes with the same associated problems suffered by all children from broken homes. Thus, it is highly unlikely that the development of children raised by homosexual couples, married or not, will match the development of children raised in married heterosexual households by their biological parents."

But if you want to cite some 'studies' and quote such 'results' from them, "Bart", you can always cite some Paul Campbell/Jeffrey Satinover/CWA/AFA pseudo-science trash....

Cheers,
 

And for the hard-of-reading:

"The considerable research literature that has accumulated addressing this issue has generally revealed that children of divorced lesbian mothers grow up in ways that are very similar to children of divorced heterosexual mothers. Several studies comparing children who have a lesbian mother with children who have a heterosexual mother have failed to document any differences between such groups on personality measures, measures of peer-group relationships, self-esteem, behavioral difficulties, academic success, or warmth and quality of family relationships.26,28,30,36–38 Children's self-esteem has been shown to be higher among adolescents whose mothers (of any sexual orientation) were in a new partnered relationship after divorce, compared with those whose mothers remained single, and among those who found out at a younger age that their parent was homosexual, compared with those who found out when they were older.

"Concern has been raised that social stigmatization might lead to teasing and embarrassment for children about their parent's sexual orientation or their family constellation and restrict their ability to form and maintain friendships. Adult children of divorced lesbian mothers have recalled more teasing by peers during childhood than have adult children of divorced heterosexual parents.39 In general, children whose parents are gay or lesbian have been found to have normal relationships with childhood peers and to maintain social relationships appropriate for their developmental levels.23,27,36

"Children born to and raised by lesbian couples seem to develop in ways that are indistinguishable from children raised by heterosexual parents. Ratings by their mothers and teachers have demonstrated children's social competence and the prevalence of behavioral difficulties to be comparable with population norms.25,40 In fact, growing up with parents who are lesbian or gay may confer some advantages to children. They have been described as more tolerant of diversity and more nurturing toward younger children than children whose parents are heterosexual.41,42"

From the Pediatrics article

"Bart" says: However, the section concerning child development in homosexual households does not address the effect of extending civil marriage to homosexual unions because the phenomenon was brand new when this paper was published.

Another quote:

"In addition to the findings discussed above, current research on same-gender couples who have been able to jointly adopt and establish legal ties between children and both parents suggests that legal recognition of same-gender marriage may strengthen ties between partners, their children, and their extended families.48,49"

Summary statement from the paper:

"There is ample evidence to show that children raised by same-gender parents fare as well as those raised by heterosexual parents. More than 25 years of research have documented that there is no relationship between parents' sexual orientation and any measure of a child's emotional, psychosocial, and behavioral adjustment. These data have demonstrated no risk to children as a result of growing up in a family with 1 or more gay parents. Conscientious and nurturing adults, whether they are men or women, heterosexual or homosexual, can be excellent parents. The rights, benefits, and protections of civil marriage can further strengthen these families."

Plenty more there.

You know, "Bart" might have benefitted from being raised by a lesbian mother. But seeing as he hasn't grown up yet, maybe there's still hope of an appropriate adoption.

Cheers,
 

"Bart":

This is a statistically insignificant number and period of time.

Question for you, "Bart": What is a "statistically insignificant number"? I'm serious. I'd like a good answer; one that shows you know what you're talking about when you use this phrase.

As for "period of time", WTF does that have to do with anything here?

Advice for you, "Bart": Don't pretend to be a scientist.

Cheers,
 

"Bart" DePalma:

Indeed, the studies which are provided reinforce my thesis....

That's funny. They didn't say that, in fact, pretty much the opposite.

... The children raised by homosexual couples are overwhelmingly the products of broken homes with the same associated problems suffered by all children from broken homes....

This is partly due to the fact that many children in gay or lesbian households are the product of prior heterosexual unions which were broken. The children are no worse off (and in many cases better off) than if the prior union was broken without a subsequent new partner (of either sex).

This will change, FWIW, as more gays and lesbians realize that they don't need to pretend to be heterosexual, and enter into these relationships that get broken.

... Thus, it is highly unlikely that the development of children raised by homosexual couples, married or not, will match the development of children raised in married heterosexual households by their biological parents.

Oh, really? How "highly unlikely"? And what is your proof for this?

Cheers,
 

The difference between the "gold fringe" crowd and the living constitutionalists is the difference between the naked beggar in the alley, and the naked Emperor parading down the middle of the street. One is powerless, the other powerful enough that people have to humor him. But they're both naked. That's all: Wickard makes no more sense than most of the stuff that gets spouted about the 16th amendment by tax protesters.

John, I understand where you're coming from, and you and Leon Kass ought to meet, and have a beer together, and get out of the freaking way of the rest of the human race. We ARE going to genetically engineer humans, whether you like it or not, and when we do, what are YOU going to do? Forcible sterilize the product? Or admit those new genes into the gene pool?

All you can possibly hope to do is delay the inevitable. And I doubt you'll do even that much. Let genetic engineering cure one, even one, genetic disease, and the natural desire of people to prevent illness will crush all your airy objections, and the future will be upon us. Even if your ilk manage to stop it here, the future will advance elsewhere.

You're like King Canute ordering the tide away, except that King knew the tide wasn't his to command, and was making a point to some overly effusive courtiers. While you actually think stopping the genetic future of the species is possible. It isn't, and you won't.
 

Brett, most countries have prohibited it, and most scientists working on genetics are adamant that they don't want to make designer babies. Things will be much much better if we choose a non-GE'd future, for many reasons. First of all, the mere act of choosing our future rather than feeling we have to succumb to the inevitable will wake us up and help us confront other problems facing the globe, such as global warming and pollution. Attitudes such as yours are why we have been so derelict in acting to solve these problems. Genetic engineering is part and parcel with other major issues facing the world that we have to take proactive steps and confront. Allowing it to continue will contribute to other problems.

So, it is by no means inevitable, and insisting that we allow it is terribly tragically ignorant and sad. Do you oppose measures to stop global warming and pollution and famine?

It can be prohibited, and it should be prohibited, and it will be realyly good to prohibit. You just don't want to, because you'd have to admit that same-sex couples should not have a right of marriage. It is a stupid stupid stubborn position that will cause great harm and that keeps us from resolving the issue. We could have equal protections for same-sex couples in a matter of weeks if you would stop insisting on allowing genetic engineering.
 

i read this blog daily .. but i seldom feel qualified to post myself .. but kudos to you all for your informative and illuminating discussions here ..

IANAL .. but i learn a great deal from your collective sniping .. nitpicking .. and general discussion ..

please do "carry on" ...
 

Volokh Conspiracy has an interview with the author of the CA Four's legislation. Apparently, the chief justice had "evolved" and wanted to "do the right thing."

The right thing for a judge is to impartially apply the law, not legislate his own policy preferences to "do the right thing" by his own lights.

Perhaps, the folks working in the initiative to reverse this opinion might also want to work on a concurrent initiative to recall the CA Four the way CA did the Bird Court.
 

The right thing for a judge is to impartially apply the law

Presumably you're going to eventually point to a flaw in how the court applied the law?
 

Bart DePalma wrote: Apparently, the chief justice had "evolved" and wanted to "do the right thing."

I'm from Kansas where we were taught that there's no such thing as evolution.

Obviously, God created the Chief Justice this way and he has done exactly as God intended.

Who are you or I to question God's will?
 

Bart De Palma makes reference to a post on the Volokh Conspiracy and observes:-

”Apparently, the chief justice had "evolved" and wanted to "do the right thing." The right thing for a judge is to impartially apply the law, not legislate his own policy preferences to "do the right thing" by his own lights.

It is worth reading the actual posting – itself an excerpt from the LA Times:-
‘But as he read the legal arguments, the 68-year-old moderate Republican was drawn by memory to a long ago trip he made with his European immigrant parents through the American South. There, the signs warning "No Negro" or "No colored" left "quite an indelible impression on me," he recalled in a wide-ranging interview Friday.
"I think," he concluded, "there are times when doing the right thing means not playing it safe."
Yet he described his thinking on the constitutional status of state marriage laws as more of an evolution than an epiphany, the result of his reading and long discussions with staff lawyers.'


So the first observation on Bart’s latest piece of nonsense is that he misrepresents the text from which he is purporting to draw a conclusion.

It was not the Chief Justice who had evolved but his ”thinking on the issue” which developed as “an evolutionary process, the result of reading the briefs and discussions with staff lawyers”. In other words the normal reasoning process of a distinguished judge conscientiously carrying out the judicial function.

Secondly, to ascertain the duty of a Judge Bart might look at the wordings of Judicial Oaths of Office. In the UK the wording of the Oath is:
"I, [name], do swear (solemly and sincerely declare and affirm) that I will well and truly serve our Sovereign Lady Queen Elizabeth in the office of [appointment], and I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will. So help me God."

The wording of the US Federal Judicial Oath is:
“I, [name] do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as [office] under the Constitution and laws of the United States. So help me God”

While the language of the latter is more modern, the effect is the same – the first duty of a Judge is to do right. It is to be done “equally” to “to all manner of people” and “without fear” – including, I would suggest, fear of what people like Bart might think.

And where the Court is charged with the testing of legislation against constitutional guarantees, then the “duty to do right” includes the duty to declare the law defective where it is appropriate to do so.

A Judge can only do that duty by reaching a conclusion based on his understanding of the law and, ultimately, his conscience.

That is not "legislating" but carrying out the function which the constitution places on the judicial branch.

Bart’s continued intemperate assaults in scurrilous language on the California Supreme Court majority, because they reached a decision of which he does not approve (although not on any reasoned forensic basis) only serves to show his lack of understanding both of the legal process and of the way in which the law must evolve in a developing society.

He (and perhaps others) would do well to carefully read and inwardly digest the sexual orientation section of the Equal Treatment Bench Book published by the English Judicial Studies Board: http://www.jsboard.co.uk/downloads/etbb/etbb_7_orientation_08.pdf

It might help him get over some of his prejudices.
 

Mourad [re: "Bart"]:

He (and perhaps others) would do well to carefully read and inwardly digest the sexual orientation section of the Equal Treatment Bench Book published by the English Judicial Studies Board: http://www.jsboard.co.uk/downloads/etbb/etbb_7_orientation_08.pdf

It might help him get over some of his prejudices.


Your optimism is touching, but misplaced. Did you see what he did with PMS_Chicago? You give him that, and he'll either reject it as furrin' law, not 'Merkun, or he'll cut'n'paste out of it enough letters to string together to make up the phrase "all gays should be gassed" and tell you that's what it says ... or both.

He's shameless ... ridicule is the only weapon one can use against such a dishonest and twisted person.

Cheers,
 

Mourad:

You may notice that not once in that entire article did the Chief Justice of the CA Four ever refer to actual law.

I noticed that your lengthy post also did not once refer to actual law.

In case you missed it, that absence of law is the entire point of this discussion.

Furthermore, the CA Four did not take the federal judges' oath and most certainly have no duty to give even a second thought to the opinions of the English Judicial Studies Board, for crying out loud.

Here is the Oath of Office taken by the CA Four:

"I, ___________________________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States and the Constitution of the State of California against all enemies, foreign and domestic; that I will bear true faith and allegiance to the Constitution of the United States and the Constitution of the State of California; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties upon which I am about to enter.

There is nothing in this oath permitting the CA Four to impose the dictates of their consciences upon fellow Californians as you contend.

Rather, the CA Four pledges allegiance to the California Constitution as it exists, not how they wish it existed. When the CA Four rewrote the California Constitution, they violated their oaths.

This is no different from any other case where a judge unethically decides he likes one party in a case and ignores the law to rule on behalf of that party.
 

"Bart" DePalma:

You may notice that not once in that entire article did the Chief Justice of the CA Four ever refer to actual law.

Oh, that's OK. Click here. That's the dry stuff, with all the footnotes, cites and "legalistic discussions". For those that care what the justices said that is, as opposed to those trying to say they said what they didn't say.

Cheers,
 

Apparently, even supporters of homosexual marriage can see that the CA Four's opinion is a legal fraud.
 

Apparently, even supporters

Baghdad, that is not "supporters", that is a single supporter. You are the most dishonest scumbag I have ever encountered.
 

"Bart" DePalma:

Apparently, even supporters of homosexual marriage can see that the CA Four's opinion is a legal fraud.

Stuart Taylor is hardly an ardent supporter of gay marriage, despite his claims. He's a conservative hack.

I'd note that Taylor call the California Supreme Court majority liars, so I feel no need to afford him any credence when he claims to "support gay marriage" and be happy for the plaintiffs.

But this from his article:

"Chief Justice Ronald George's majority opinion exuded impatience bordering on contempt for the government by the people that is the foundation of our democratic system. California's voters and elected branches had already made great progress toward full legal equality for gay couples."

Hardly dispassionate legal 'analysis' there. In fact, seeing as constitutional questions should be immune to public opinion polls and even to "great progress" in the political sphere, it's quite deficient. What matters is what the constitution demands, not what the public (or legislature) wants. No one disputes the results of the ballot measure. What is under dispute is whether that can stand, consistent with the California constitution. If not, then the ballot measure must yield, even if it had 99% "yea" support.

Cheers,
 

Bart:

Now that I'm well into my 60's I often tell newish litigators that in my experience it is better to eschew the writing of letters to opponents which begin “We were surprised to see that you have…”. The reason I caution against the use of that particular phrase is that surprise is all too often the precursor of enlightenment.

I confess that over the weeks that I have seen your posts on various threads of this blog, I have found many of your propositions surprising. On this thread, I have found it surprising that you, an officer of the court, feel free to accuse judges of the supreme court of a sister jurisdiction of dishonesty.

I have also found it surprising that you feel able to make assertions that are untrue on their face. The latest example is the assertion that the majority opinion of the court contains no reference to “actual law”. As Arne has pointed out above, a perusal of the text of the opinion gives the lie to that assertion.

I now find it surprising that you feel able to assert “When the CA Four rewrote the California Constitution, they violated their oaths.”

The majority opinion did not re-write the California constitution, nor could they. The issue before the Court was whether legislation enacted in California was consistent with the Constitution. They held it was not. That is their proper function which from the opinion, they plainly carried out conscientiously. Legally, they are the final arbiters on that question. If the people of California feel that the Constitution requires to be amended in consequence, they have that power.

Turning now, to two comments you make about my earlier post:

I cited the UK and US Federal judicial oaths, not because they are taken by the state judges in California but to point out to you that the very first duty of any judge is to do right to the litigants before him and in that sense, all courts are courts of conscience. As an example, you make care to recollect Lord Mansfield’s Judgment in R. v. Knowles, ex parte Somersett 1772 which concluded:

"... The state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political; but only positive law, which preserves its force long after the reasons, occasion, and time itself from whence it was created, is erased from memory: it's so odious, that nothing can be suffered to support it, but positive law. Whatever inconveniences, therefore, may follow from a decision, I cannot say this case is allowed or approved by the law of England; and therefore the black must be discharged."

I suppose you would say that given the absence of positive legislation emancipating Somersett, or clear judicial precedent, Lord Mansfield should have sent Somersett back into slavery. Law before Justice, what?

Nor did I suggest that it was necessary for the California Supreme Court to read the guidance for English judges on how they should conduct themselves on the bench. They need no lessons about avoiding irrational prejudice. The suggestion was that you read the guidance, because you most certainly do.

I think I am by now enlightened. On the basis of your writings on this blog, the poster who suggested, you took your bar examinations by a deputy may very well have hit on the truth. That might explain your DUI practice.

I would have suggested that you try politics since that’s a great refuge for lawyers who find it difficult to cope with facts and law. Only I note that your several posts since 10th May 2008 on your Citizen Pampleteer blog at http://citizen-pamphleteer.blogspot.com/ have, unsurprisingly, attracted precisely zero comments. Not a good sign. Nobody wants to respond to you. What a shame.

Perhaps you post here because you see yourself as a new John the Baptist – a voice crying from the wilderness of Woodland Park (pop 7950). Or perhaps you post here as a weird form of therapy on the basis that it’s less lonely being rubbished than it is being ignored.

My dear chap, I'm sure we'll all be only too happy to keep rubbishing your posts if it makes you feel better. Most posters here seem to be liberals and, as you should know, one mark of a liberal is a willingness to come to the aid of the afflicted.
 

I am an attorney and have argued in the U.S. Supreme Court. Unfortunately, we seemed to have reached the point where public opinion is irrelevant to public policy. One name for this is tyranny, another is fascism. Judges should never overturn majoritarian choices without a clear command from the constitution (state or federal).

What should five-year-old kids be taught in kindergarten about family and marriage? This is the most important issue in the same-sex marriage debate, but it is seldom discussed.

Law does not just command and prohibit. It inevitably educates. Changing the law to treat same-sex marriage and its corollaries (including incestuous marriage and same-sex, opposite-sex, and bisexual varieties of polygamy) as the equivalent of traditional opposite-sex monogamous marriage would require that kindergarteners (five-year-olds) be taught this doctrine. This is inevitable and is already happening in Massachusetts and California. When this message penetrates the five-year-olds' minds (e.g., before Johnny marries Sally, he should consider marrying Billy, or Billy and Bobby), our society will collapse.

A society cannot exist without shared moral standards and values. And it certainly cannot survive when the fundamental building blocks of marriage and family are redefined to mean everything (and therefore nothing).
 

Proposition 22, which defined marriage to be between a man and a woman and adopted by California voters on March 7, 2000 with 61.4% in favor, was hijacked along with the California Legislative Branch by the Tyrannical Justices of the California Supreme Court which legislated from the bench in direct violation of the California Constitution and managed to null the will of the people and declare Proposition 22 unconstitutional. It only took four tyrannical traitors to wrest the will of the citizen of California, these four judges are either being bribed, or blackmailed by the degenerates or they are homosexuals themselves.

Writing for the majority, Chief Justice Ronald M. George said: “In light of the conclusions we reach concerning the constitutional questions brought to us for resolution, we determine that the language of section 300 limiting the designation of marriage to a union “between a man and a woman” is unconstitutional and must be stricken from the statute, and that the remaining statutory language must be understood as making the designation of marriage available both to opposite-sex and same-sex couples.”

The black robed tyrants had the audacity and the recklessness to stick their tongues to the majority of California voters and without an ounce of shame declared that a marriage between a man and a woman is unconstitutional, but marriage between a man and a woman becomes constitutional when coupled with same-sex couples, what a bunch of crap, these judges must believe that the California populace are nothing more than a bunch of moronic retards.

The people of California must demand the heads of these tyrants, they should be thrown out of the California Supreme Court and they should be forced to sweep the street for the rest of their wretched lives.

If unrestrained, some day in the near future these black robed tyrants will grant the salivating perverts in a silver platter the age of consent lowered to eight years of age.
Eureka, now the degenerates will be free to marry innocent little boys, which would be the pinnacle of all perversions, and also would open the doors to all kinds of unimaginable atrocities. How would you react Mom, Dad when some day Johnny, your little nine years old boy says to you? Good old Fred our next-door neighbor and I are getting married. It will happen very soon, check it out at www.nambla.org the North American Man/Boy Love Association.

Americans must reintroduce the Word of God in Public Education, also they must reverse legalized “premeditated murder” on demand, and they must agree with God with one mind and write it into the law of the land that homosexuality is an abomination and by overthrowing Executive Order 13087 signed by President Clinton, who with Bible in hand bypassed the U.S. Congress and the populace and inflicted on society one of the many things God abhors the most, cramming homosexuals, bisexuals, and the transgendered in the federal and civilian workforce, in an attempt to normalize what once was cosidered an immoral and filthy addiction. Homosexuals must also be prevented from corrupting the minds of the youth, therefore they must be prohibited to adopt, coach, teach or have any direct contact with children, and they must be redirected back to the closets they came from, where most appropriately belong.
 

Proposition 22, which defined marriage to be between a man and a woman and adopted by California voters on March 7, 2000 with 61.4% in favor, was hijacked along with the California Legislative Branch by the Tyrannical Justices of the California Supreme Court which legislated from the bench in direct violation of the California Constitution and managed to null the will of the people and declare Proposition 22 unconstitutional. It only took four tyrannical traitors to wrest the will of the citizen of California, these four judges are either being bribed, or blackmailed by the degenerates or they are homosexuals themselves.

Writing for the majority, Chief Justice Ronald M. George said: “In light of the conclusions we reach concerning the constitutional questions brought to us for resolution, we determine that the language of section 300 limiting the designation of marriage to a union “between a man and a woman” is unconstitutional and must be stricken from the statute, and that the remaining statutory language must be understood as making the designation of marriage available both to opposite-sex and same-sex couples.”

The black robed tyrants had the audacity and the recklessness to stick their tongues to the majority of California voters and without an ounce of shame declared that a marriage between a man and a woman is unconstitutional, but marriage between a man and a woman becomes constitutional when coupled with same-sex couples, what a bunch of crap, these judges must believe that the California populace are nothing more than a bunch of moronic retards.

The people of California must demand the heads of these tyrants, they should be thrown out of the California Supreme Court and they should be forced to sweep the street for the rest of their wretched lives.

If unrestrained, some day in the near future these black robed tyrants will grant the salivating perverts in a silver platter the age of consent lowered to eight years of age.
Eureka, now the degenerates will be free to marry innocent little boys, which would be the pinnacle of all perversions, and also would open the doors to all kinds of unimaginable atrocities. How would you react Mom, Dad when some day Johnny, your little nine years old boy says to you? Good old Fred our next-door neighbor and I are getting married. It will happen very soon, check it out at www.nambla.org the North American Man/Boy Love Association.

Americans must reintroduce the Word of God in Public Education, also they must reverse legalized “premeditated murder” on demand, and they must agree with God with one mind and write it into the law of the land that homosexuality is an abomination and by overthrowing Executive Order 13087 signed by President Clinton, who with Bible in hand bypassed the U.S. Congress and the populace and inflicted on society one of the many things God abhors the most, cramming homosexuals, bisexuals, and the transgendered in the federal and civilian workforce, in an attempt to normalize what once was cosidered an immoral and filthy addiction. Homosexuals must also be prevented from corrupting the minds of the youth, therefore they must be prohibited to adopt, coach, teach or have any direct contact with children, and they must be redirected back to the closets they came from, where most appropriately belong.
 

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