Ninth Circuit rules Prop 8 unconstitutional.

[Okay, maybe Mike Johnson is a competent parliamentarian.]

Misha, you are aware that the sexual orientation of judges is irrelevant to whether or not their rulings are good law, right? Further, you know that narrowing the scope of an originally sweeping decision on appeal while upholding it substantively is an entirely normal and in some cases entirely expected thing for a court to do?

[Okay, maybe Mike Johnson is a competent parliamentarian.]

Exactly. Judge Walker's ruling used very bold (although, I think, sound) constitutional argumentation, which there's certainly something to be said for. Judge Reinhardt's is by contrast rather parsimonious, which there's also something to be said for (from the perspective of a judge) in delicate and often highly emotional cases like this.

I'm not sure how exactly Misha squares saying that this ruling is itself a 'defeat for the homosexual activists' with saying that it will also be overturned because EWW GAY PEOPLE, but that's Misha for you.

[Okay, maybe Mike Johnson is a competent parliamentarian.]

Misha, please explain why Walker's orientation is relevant to the merits of the case.

Also, Baker was dismissed for want of a substantial federal question, forty years ago. The Perry appellate ruling is actually quite similar to Baker in terms of its parsimony. And marriage as a fundamental right isn't new, it goes back to Zablocki v. Redhail.


Actually, wait, no. Don't explain or address any of these things, please don't. Carry on spinning this as some kind of victory. This is amazing work, seriously well done.

[Okay, maybe Mike Johnson is a competent parliamentarian.]

I've never felt there is a positive right to marry in the US constitution. Government recognized marriage is more of a subsidy, an incentive to engage in a particular lifestyle of commitment that has some social benefit and will demand some sort of streamlined method of entering into contracts, from shared property rights to guardianship over children. Society may at any time demand legal recognition of whatever type of relationship it wants and called it whatever it wants (and as sure as the Browns missing the playoffs again, gay marriage will be legally recognized in most of the US very soon) but in my eyes "marriage" will always be between a man and a woman. Men and women are created different, with parts that fit together in a particular way and for a particular purpose. Marriage is the framework for this, a union of committed love and procreation. No matter what the government decides and no matter what society demands.

Always good to hear from you, TJ.

While I probably disagree with your thoughts on the religious character of marriage more than your thoughts on its legal character--one of the few subjects on which this is true--I respect your convictions and especially your ability to calmly and reasonably articulate them even at times when it might be understandable for people who take your position on this to be freaking out and comporting themselves more like Misha up there.

[Okay, maybe Mike Johnson is a competent parliamentarian.]

"marriage" will always be between a man and a woman. Men and women are created different, with parts that fit together in a particular way and for a particular purpose. Marriage is the framework for this, a union of committed love and procreation. No matter what the government decides and no matter what society demands.

You are actually correct on this, and it isn't just "in your eyes". Government simply doesn't have the power to change marriage. Government can counterfeit marriage, and issue pieces of paper to people to make them feel good about playing house, but government doesn't grant marriage or have the power to alter it.

Then where does civil marriage come from? Remember, civil marriage is what we're discussing. (There's an argument to be made for 'Boston marriages' or certain types of romantic friendships back in the day having comparable spiritual validity to standard marriage--granted, one I'm reasonably certain TJ wouldn't make--but they were certainly not civil marriages.)

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...

...I'm trying to think of a way to respond to this but the only things that come to mind are disgusted lines delivered to Doctor Who villains by Tom Baker. (That and 「世界を革命する力を」 but I'm afraid that would be lost on you.)

[Okay, maybe Mike Johnson is a competent parliamentarian.]

Isn't it obvious? Of course a gay judge would be almost certain to rule in favor of gay marriage! In every wedge issue case like this that serves as some kind of landmark, the judge's personal opinion is of utmost importance in determining which way he will rule.

Well, yes, but that's one of the things that the appeals process is there to sort through, and on a highly charged issue like this it's not like they could have found an entirely personally neutral judge anyway, especially given that he wasn't openly gay at the time. I understand why it's relevant from a legal-psychology perspective but I still don't understand what Misha referring to him as 'the homosexual judge' is supposed to accomplish, beyond making him (Misha, not Walker) look obsessive and petty. One could make an argument that Walker should have recused himself, but then you'd have to deal with questions of whether, say, black judges should recuse themselves from civil rights or affirmative action cases.

Having this ruling restricted to California could be considered a tactical defeat but is definitely a strategic win for us. I don't think it makes sense for this ruling to legalize SSM in, say, Idaho.

I don't want universal same-sex marriage legalization going to the Supreme Court. We'd probably lose. Where we can win is on federal recognition of legal state marriages and in protection from unpopularity contests like Prop 8 in state decisions.

We've come so far in 8 years that the outcome is no longer in doubt.

Yeah, protection from certain types of setbacks in an incremental process is what I'm hoping for here.

[Okay, maybe Mike Johnson is a competent parliamentarian.]

You have to determine that a fetus is a legal person first if you want to use the Fourteenth that way.

Nobody of note has ever denied that gays and lesbians are legal persons.

[Okay, maybe Mike Johnson is a competent parliamentarian.]

I was with you until the last paragraph. 'Government handouts and protection from whatever' are perfectly reasonable things for two people who want to live and enjoy life together to seek.

[Okay, maybe Mike Johnson is a competent parliamentarian.]

It doesn't mean that. The ruling was tailored to (a) specify that the situation discussed was just the one in California through reference to the specifics of what was done there and (b) make the Supremes less inclined to grant cert.

[Okay, maybe Mike Johnson is a competent parliamentarian.]

There are serious legal and bureaucratic issues faced with implementing gay marriage on a federal and national level.  Even if gay marriage was legalized nationally, it will take several years for gay marriage to be implemented among the many government programs that it effects.  Federal regulators are correct in analyzing how it effects state governments at the local level before deciding if it can be implemented on a federal level.  There are significant legal issues that differ between state and national laws, and while it may seem like happy times for gay marriage supporters, it will be a bureaucratic nightmare for federal employees tasked with enforcing the rules and regulations of spousal agreements. 

Two questions:

How?
Why?

[Okay, maybe Mike Johnson is a competent parliamentarian.]

There are serious legal and bureaucratic issues faced with implementing gay marriage on a federal and national level.  Even if gay marriage was legalized nationally, it will take several years for gay marriage to be implemented among the many government programs that it effects.  Federal regulators are correct in analyzing how it effects state governments at the local level before deciding if it can be implemented on a federal level.  There are significant legal issues that differ between state and national laws, and while it may seem like happy times for gay marriage supporters, it will be a bureaucratic nightmare for federal employees tasked with enforcing the rules and regulations of spousal agreements. 

Two questions:

How?
Why?

As I've said gay marriage fraud will increase when the better federal benefits get applied.  This will require more social workers and bureaucracies to regulate fraudulent gay marriage, yay big government.  For one thing, the widow pensions for social security are lucrative enticements.  Even for platonic same gender friends, I can see gold-diggers marrying old people just for their pensions.  Other government programs that don't want to implement gay marriage would be the military, which gives free housing to married couples.  Another program that doesn't want to implement gay marriage is homeland security and INS, which does not want to increase their budget to process the green cards, visas, and background checks for gay foreign spouses.  I'm sure there are more government programs affected by gay marriage, but that is why Obama will never support federal gay marriage because he knows that it will create increased budgetary demands that he does not have the resources to pay for.  There are also many catholic hospitals and community programs that will be affected by gay marriage demands, which will likely force them to shut down and close. 

The social and ideological reasons for having state-recognized marriage are not contingent on your bizarre interpretations of balance sheets, thank God, nor anybody else's. Marriage is not there for the budgetary convenience of the government.

[Okay, maybe Mike Johnson is a competent parliamentarian.]

You have to determine that a fetus is a legal person first if you want to use the Fourteenth that way.

Nobody of note has ever denied that gays and lesbians are legal persons.

Give JCL time.

Nice try. What do you get when a male human and a female human made in the image of God have relations? A baby human is what you get. Natural Law dictates that said child in the womb should be protected. Natural Law determined that the baby in the womb is a legal person.

Gays and lesbians are legal people. It's their personal choices of a most intimate manner that are contrary to that Natural Law that God set in place. If I denied gays and lesbians legal personhood it would be as bad as those who deny childern in the womb their rights as legal people.

Natural Law isn't where the Fourteenth Amendment purports to derive its legitimacy.

[Okay, maybe Mike Johnson is a competent parliamentarian.]

Sir William Blackstone, the British jurist who died two hundred and thirty-two years ago? Somehow I doubt he had strong opinions on the the Reconstruction Amendments or modern LGBT rights movements.

[Okay, maybe Mike Johnson is a competent parliamentarian.]

Sir William Blackstone, the British jurist who died two hundred and thirty-two years ago? Somehow I doubt he had strong opinions on the the Reconstruction Amendments or modern LGBT rights movements.

But George Washington and most if not ALL of the  founders actively opposed gays in military service. Who influance the Founders on law? Blackstone. Who did Blackstone get his influance regarding law and governance? The Bible.

I'm reasonably certain that most if not all of the founders actively opposed women's suffrage as well, and their splits on the issue of whether or not to manumit their slaves are well-documented.

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I'm not entirely certain that this paragraph advances a single coherent thought, more like a somewhat diced-up sequence of several, but you have a series of unassigned pronouns in there that I feel it's critical we assign before we decide whether or not the religious sensibilities that people in the eighteenth and nineteenth centuries are held to have had are held to be applicable to secular law in the twenty-first. The historian John Boswell did some good work on the attitudes taken towards homosexuality by the Church in the Middle Ages and by people like Henry de Bracton, which I recommend you check out before trying to best me on appeal to relative age of putative authority.

[Okay, maybe Mike Johnson is a competent parliamentarian.]

Consummation that may or may not lead to pregnancy is a leading indicator of whether a marriage is valid or not.

This sentence is absolutely disgusting.

[Okay, maybe Mike Johnson is a competent parliamentarian.]

Consummation that may or may not lead to pregnancy is a leading indicator of whether a marriage is valid or not.

This sentence is absolutely disgusting.

Not to mention painfully paternalistic and communitarian.

Don't insult communitarianism by affiliating it with that sentence, please.

[Okay, maybe Mike Johnson is a competent parliamentarian.]

Well, it shouldn't.