Might does not make right.
What does? Martyrdom? Does God come down from heaven and give you brownie points for being morally superior? Anyone who claims a right -- any right -- needs some means of backing that claim, or that right can be taken away at the whim of anyone who cares to. That's the idea of government as a social contract: we bind ourselves to a larger group, and subvert our will to its decisions in specified matters (no matter how much it galls people like BT and myself to do so), in exchange for it defending certain rights that we'd not like to see taken away.
Go onto the savannah and tell a hungry lion you have the "right" not to be eaten, and see how it replies. I'll go out with a dozen guys with rifles, and tell the lion he has the right to not get shot, as long as he respects our right not to be snacks.
RPG Superstar 2009 Top 32, 2010 Top 8
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Enforcing contracts, fine. Defining contracts, not so much.Hurray! then my girlfriend and I can get married. You know, at first Matthew, I thought you weren't a big proponent of same-sex marriage. But if only we get to define a contract, then it's perfectly acceptable.
*laugh* Crystal, I stood at my mom's commitment ceremony. I don't care what two (or more!) consenting adults do in their own bedroom (or basement, or dungeon or whatever).
I don't think that my mother's commitment to her partner is any more or less than my marriage(s). Heck they've outlasted me, but you could blame that on my lack of skill in choosing a partner.
At the same time, if you want your contract to achieve government recognition, then you go the legislative route, like Vermont and Connecticut. Finding things in the shadows of the language isn't the way to do it.
I argue that you have the same right to get married as any other single person. You have to meet the qualifications as defined by your state. Baker v Nelson was the correct decision then, and now.
Let the states decide. If you want the government recognition of your contract, then you can lobby your legislature, or you go to a state where you can have that recognition. When FF&C hits, that's when it becomes a federal issue.
And thank you for again confirming my theory that 'all the good ones are taken or play for the other team." :-)
Might does not make right.What does? Martyrdom? Does God come down from heaven and give you brownie points for being morally superior? Anyone who claims a right -- any right -- needs some means of backing that claim, or that right can be taken away at the whim of anyone who cares to. That's the idea of government as a social contract: we bind ourselves to a larger group, and subvert our will to its decisions in specified matters (no matter how much it galls people like BT and myself to do so), in exchange for it defending certain rights that we'd not like to see taken away.
Go onto the savannah and tell a hungry lion you have the "right" not to be eaten, and see how it replies. I'll go out with a dozen guys with rifles, and tell the lion he has the right to not get shot, as long as he respects our right not to be snacks.
By your rationale, if I break into someone's house and kill them, as long as I'm not caught, then I didn't do anything wrong. After all, if society couldn't protect the rights of my victims, then they weren't rights at all. I had the power to carry out my wishes, and that's all that matters, so no one's rights were violated.
I suppose that what happened to the Jews during WWII was A-OK? Or at least it would have been, had Germany won? Or was it fine, but then suddenly not fine as soon as Germany was defeated?
Even conceding that there is no supernatural source of rights, you're equating the validity of a social contract with the ability to defend it violently. There is a difference between a right being violated and not existing in the first place. While you could certainly make the argument that rights that cannot be defended (violently, if necessary) are worthless in practice, that isn't the same thing. Not even close, in fact.
Jack Sparrow: The only rules that really matter are these: what a man can do and what a man can't do. For instance, you can accept that your father was a pirate and a good man or you can't. But pirate is in your blood, boy, so you'll have to square with that some day. And me, for example, I can let you drown, but I can't bring this ship into Tortuga all by me onesies, savvy? So, can you sail under the command of a pirate, or can you not?
Jack Sparrow: The only rules that really matter are these: what a man can do and what a man can't do. For instance, you can accept that your father was a pirate and a good man or you can't. But pirate is in your blood, boy, so you'll have to square with that some day. And me, for example, I can let you drown, but I can't bring this ship into Tortuga all by me onesies, savvy? So, can you sail under the command of a pirate, or can you not?
Mmmm...okay. Thanks for that.
It doesn't matter if it is not the right thing to do. If you have no might to support your rights, then you have no rights. Isn't that what this thread is about? The judicial might being employed to stop those without might, the minority, from having their rights taken away by those with might, the majority?
Got it -- so if rape someone because I'm bigger and stronger, I haven't violated their rights. Cause if they couldn't enforce their will, that had no right to *not* be sexually assaulted. Check.
It doesn't matter if it is not the right thing to do. If you have no might to support your rights, then you have no rights. Isn't that what this thread is about? The judicial might being employed to stop those without might, the minority, from having their rights taken away by those with might, the majority?Got it -- so if rape someone because I'm bigger and stronger, I haven't violated their rights. Cause if they couldn't enforce their will, that had no right to *not* be sexually assaulted. Check.
Not to put words in TOZ's mouth, Bugleyman, but I think you've misread his intended meaning.
Edit: Or maybe you didn't. Nevermind. I knew better than to try and approach this thread rationally. Stupid me.
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Got it -- so if rape someone because I'm bigger and stronger, I haven't violated their rights. Cause if they couldn't enforce their will, that had no right to *not* be sexually assaulted. Check.
You can't violate something they don't have.
That being said, you are still an evil man who deserves any punishment that falls on you. I would find death a fitting choice.
Rights are a social construct. They only exist if everyone agrees they do.
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Might does not make right.What does? Martyrdom? Does God come down from heaven and give you brownie points for being morally superior? Anyone who claims a right -- any right -- needs some means of backing that claim, or that right can be taken away at the whim of anyone who cares to. That's the idea of government as a social contract: we bind ourselves to a larger group, and subvert our will to its decisions in specified matters (no matter how much it galls people like BT and myself to do so), in exchange for it defending certain rights that we'd not like to see taken away.
Go onto the savannah and tell a hungry lion you have the "right" not to be eaten, and see how it replies. I'll go out with a dozen guys with rifles, and tell the lion he has the right to not get shot, as long as he respects our right not to be snacks.
By your rationale, if I break into someone's house and kill them, as long as I'm not caught, then I didn't do anything wrong. After all, if society couldn't protect the rights of my victims, then they weren't rights at all. I had the power to carry out my wishes, and that's all that matters, so no one's rights were violated.
I suppose that what happened to the Jews during WWII was A-OK? Or at least it would have been, had Germany won? Or was it fine, but then suddenly not fine as soon as Germany was defeated?
Even conceding that there is no supernatural source of rights, you're equating the validity of a social contract with the ability to defend it violently. There is a difference between a right being violated and not existing in the first place. While you could certainly make the argument that rights that cannot be defended (violently, if necessary) are worthless in practice, that isn't the same thing. Not even close, in fact.
Considering the only way the "social contract" can be enforced is through the government's (or whomever is enforcing that "right") use of force (whether it be direct violence, incarceration or some other means), yes.
The family that was murdered, do you think they care that they had a "right" to not be murdered? All they know is they're dead. Their "right" didn't protect them. May as well not have existed for all the good it did.
"Rights" do not exist in the absence of the ability to defend them. Period. They're just a meaningless concept people wrap around themselves. And, considering that we're not supposed to go invading places willy nilly that couldn't care less about "human rights", apparently we, as a society are just paying a lip service to the concept. Otherwise, why wouldn't we be doing everything we could to ensure everyone enjoys the same "inalienable human rights" we expect for ourselves?
Oh, yeah, because "rights" are nice to talk about, but ensuring everyone has them, and can defend them, is apparently distasteful, and not "sensitive" to the cultures that oppress their people. Or something.
Got it -- so if rape someone because I'm bigger and stronger, I haven't violated their rights. Cause if they couldn't enforce their will, that had no right to *not* be sexually assaulted. Check.
You can't violate something they don't have.
That being said, you are still an evil man who deserves any punishment that falls on you. I would find death a fitting choice.
If I didn't violate anyone's rights, why am I evil? Why do I deserve punishment?
Clearly we have a misunderstanding. I'm going to drop this, but I really don't understand the "rights only exist if they can be violently defended" position -- at all. If what was meant was that rights that cannot be defended are useless in practice, that's different, but that is *not* at all what was said.
Why would a human have innate rights that any other primate doesn't have? If we don't accept any divine interactions, shouldn't we look to nature to tell us what innate rights are?
Oh, yeah, because "rights" are nice to talk about, but ensuring everyone has them, and can defend them, is apparently distasteful, and not "sensitive" to the cultures that oppress their people. Or something.
Why are you constantly trying to pick fights over something I haven't said?
You are just about the angriest person I've ever "met."
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Why would a human have innate rights that any other primate doesn't have? If we don't accept any divine interactions, shouldn't we look to nature to tell us what innate rights are?
Oh, no. Can't bring natural law into the equation. It just isn't human, since we have nothing to do with nature, apparently.
Why would a human have innate rights that any other primate doesn't have? If we don't accept any divine interactions, shouldn't we look to nature to tell us what innate rights are?
I believe in the concept of a social contract. I just don't think it's null and void if someone picks up a gun.
Oh, no. Can't bring natural law into the equation. It just isn't human, since we have nothing to do with nature, apparently.
I have no idea who you're arguing with, but it isn't me. It isn't even clear to me what you're talking about.
What is becoming increasingly clear to me is that you can't interact with me without resorting to sarcasm and browbeating, usually for things I haven't even said. So, my mistake for responding to your post; let's just pretend I didn't.
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I have no idea who you're arguing with, but it isn't me. I don't even know what you're talking about.Oh, no. Can't bring natural law into the equation. It just isn't human, since we have nothing to do with nature, apparently.
Not you, just a general chiding of TOZ for bringing up the other inhabitants of the planet. The ones without social constructs to protect them.
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Got it -- so if rape someone because I'm bigger and stronger, I haven't violated their rights. Cause if they couldn't enforce their will, that had no right to *not* be sexually assaulted. Check.
You can't violate something they don't have.
That being said, you are still an evil man who deserves any punishment that falls on you. I would find death a fitting choice.
If I didn't violate anyone's rights, why am I evil? Why do I deserve punishment?
Clearly we have a misunderstanding. I'm going to drop this, but I really don't understand the "rights only exist if they can be violently defended" position -- at all. If what was meant was that rights that cannot be defended are useless in practice, that's different, but that is *not* at all what was said.
Because you caused harm to another person. 'Rights' have nothing to do with right and wrong.
I don't understand how you can claim that 'people always have rights' when Islamic women obviously do NOT have rights. Because Islam does not GIVE them those rights.
Not you, just a general chiding of TOZ for bringing up the other inhabitants of the planet. The ones without social constructs to protect them.
My bad. Trying to practice voicing my opinion so I can examine it and make sure I'm not just parroting other people's opinion.
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Oh, yeah, because "rights" are nice to talk about, but ensuring everyone has them, and can defend them, is apparently distasteful, and not "sensitive" to the cultures that oppress their people. Or something.
Why are you constantly trying to pick fights over something I haven't said?
You are just about the angriest person I've ever "met."
I'm not angry. More like annoyed.
RPG Superstar 2010 Top 16
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On issues of morality, there are two generally accepted reasonable positions: when you see someone lying in the gutter, starving, you should help him because he has universal rights, independent of the culture or your personal beliefs, and when you see someone lying in the gutter, starving, you should help him because you have a duty, independent of cultural norms or your personal beliefs. You can have a perfectly reasonable ethos without resorting to rights at all. Confucianism, for example, hangs entirely on duties.
But most reasonable people fall somewhere between the two extremes.
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Got it -- so if rape someone because I'm bigger and stronger, I haven't violated their rights. Cause if they couldn't enforce their will, that had no right to *not* be sexually assaulted. Check.
You can't violate something they don't have.
That being said, you are still an evil man who deserves any punishment that falls on you. I would find death a fitting choice.
If I didn't violate anyone's rights, why am I evil? Why do I deserve punishment?
Clearly we have a misunderstanding. I'm going to drop this, but I really don't understand the "rights only exist if they can be violently defended" position -- at all. If what was meant was that rights that cannot be defended are useless in practice, that's different, but that is *not* at all what was said.
Because you caused harm to another person. 'Rights' have nothing to do with right and wrong.
I don't understand how you can claim that 'people always have rights' when Islamic women obviously do NOT have rights. Because Islam does not GIVE them those rights.
Not you, just a general chiding of TOZ for bringing up the other inhabitants of the planet. The ones without social constructs to protect them.My bad. Trying to practice voicing my opinion so I can examine it and make sure I'm not just parroting other people's opinion.
And let that be a lesson to you, young man. ;-)
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I think I would fall under the 'duty' side. "Do unto others as you would have them do unto you." You have to reverse your positions and ask "What would I want someone else to do if I were in that position?". I dare say no one would say "I would want someone to forcibly beat and violate my body." Thus, no one should do such to other people. But I personally don't believe it is a persons 'duty' to aid others. However, they should not expect aid from others if they refuse to do so themselves.
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One problem I can see with giving states the right to define the exact nature of marriage...until a little over 40 years ago, marriage in Virginia was defined as being between a white man and a white woman, or between a black man and a black woman. If the decision had been left to the state of Virginia (as opposed to the Supreme Court), how long would they have taken to recognize the rights of interracial couples to marry?
I have no issue with states deciding an age of consent for marriage (or driving a car, or drinking alcohol). But if the age of consent is 16 (for example), then every 16-year old should have that right, whether black or white or gay or straight.
At least, that's my thinking...
One problem I can see with giving states the right to define the exact nature of marriage...until a little over 40 years ago, marriage in Virginia was defined as being between a white man and a white woman, or between a black man and a black woman. If the decision had been left to the state of Virginia (as opposed to the Supreme Court), how long would they have taken to recognize the rights of interracial couples to marry?
I have no issue with states deciding an age of consent for marriage (or driving a car, or drinking alcohol). But if the age of consent is 16 (for example), then every 16-year old should have that right, whether black or white or gay or straight.
At least, that's my thinking...
The problem with comparing SSM to interracial marriage is that with interracial marriage you are making the distinction based on the person, while with SSM you are making the distinction based on the particular relationship.
The problem with comparing SSM to interracial marriage is that with interracial marriage you are making the distinction based on the person, while with SSM you are making the distinction based on the particular relationship.One problem I can see with giving states the right to define the exact nature of marriage...until a little over 40 years ago, marriage in Virginia was defined as being between a white man and a white woman, or between a black man and a black woman. If the decision had been left to the state of Virginia (as opposed to the Supreme Court), how long would they have taken to recognize the rights of interracial couples to marry?
I have no issue with states deciding an age of consent for marriage (or driving a car, or drinking alcohol). But if the age of consent is 16 (for example), then every 16-year old should have that right, whether black or white or gay or straight.
At least, that's my thinking...
How's that? It's based on the particular relationship in both cases - it could have been argued in the past that minorities could get married too, just not to caucasians, so they have the same right to marriage as anyone. That's the same argument as saying homosexuals have the same right to marry as heterosexuals do now, they just have to get married to the opposite sex regardless of their preference - in either case it means their marriage is unrecognized (interracial before, homosexual now).
How's that? It's based on the particular relationship in both cases - it could have been argued in the past that minorities could get married too, just not to caucasians, so they have the same right to marriage as anyone. That's the same argument as saying homosexuals have the same right to marry as heterosexuals do now, they just have to get married to the opposite sex regardless of their preference - in either case it means their marriage is unrecognized (interracial before, homosexual now).The problem with comparing SSM to interracial marriage is that with interracial marriage you are making the distinction based on the person, while with SSM you are making the distinction based on the particular relationship.One problem I can see with giving states the right to define the exact nature of marriage...until a little over 40 years ago, marriage in Virginia was defined as being between a white man and a white woman, or between a black man and a black woman. If the decision had been left to the state of Virginia (as opposed to the Supreme Court), how long would they have taken to recognize the rights of interracial couples to marry?
I have no issue with states deciding an age of consent for marriage (or driving a car, or drinking alcohol). But if the age of consent is 16 (for example), then every 16-year old should have that right, whether black or white or gay or straight.
At least, that's my thinking...
So race WAS a consideration before and orientation IS NOT a consideration now, and there is no difference between the two?
If you want to argue that sex IS a consideration, and therefore it is actually sex based discrimination then the comparison would be more valid.
But orientation is a non-issue here, even if we allow SSM, you still couldn't based who could enter it on their sexual orientation. In that case, two heterosexual males could get married (for whatever non-sexual reasons they choose). Orientation will continue to be a non-factor to determine what types of unions the government will recognize as "marriages".
So race WAS a consideration before and orientation IS NOT a consideration now, and there is no difference between the two?
If you want to argue that sex IS a consideration, and therefore it is actually sex based discrimination then the comparison would be more valid.
But orientation is a non-issue here, even if we allow SSM, you still couldn't based who could enter it on their sexual orientation. In that case, two heterosexual males could get married (for whatever non-sexual reasons they choose). Orientation will continue to be a non-factor to determine what types of unions the government will recognize as "marriages".
I'm not sure what you're getting at there, but what I was saying is that the situations are similar. Barring people from marrying across racial lines and barring them from marrying within sex lines are both based on the nature of the relationship, not the individual. And the idea is that you couldn't discriminate based on orientation - I'm not arguing for a separate "same-sex marriage" status, I'm arguing that disallowing it for homosexual couples is, in nature, the same as disallowing it for interracial couples.
As far as a pair of same-sex people who aren't in a relationship getting married, how is that any different form a pair of opposite-sex people doing the exact same thing right now? Playing the system is playing the system, regardless of whether you both use the same public restroom.
And yeah, I'd say it's sex-based discrimination. Frankly, I don't care how the laws get changed, what precedents are used to change them, only that they get changed to put an end to discrimination. Whether that's done judicially, legislatively, or revolutionarily (or any other way) isn't important, to me.
Has the current update been posted yet?
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RPG Superstar 2009 Top 32, 2010 Top 8
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Has the current update been posted yet?
I dont' expect Walker to issue a stay, which is a damn shame. If the Supremes follow precident, they'll overturn walker and then we'll have however many people who are stuck in some kind of limbo.
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I dont' expect Walker to issue a stay, which is a damn shame. If the Supremes follow precident, they'll overturn walker and then we'll have however many people who are stuck in some kind of limbo.
I've stayed out of this fray for a really long time, especially during the complete absurd phase of this thread. However I'd like to remind people again that for the 9th Circuit of the Federal Courts there is murky precedent at best. In addition there is zero precedent at the level of the Supreme Court of the Unites States. The prior statement was just that, a statement. It had and has no legal bearing on what the Supreme Court can judge in the future.
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RPG Superstar 2009 Top 32, 2010 Top 8
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I dont' expect Walker to issue a stay, which is a damn shame. If the Supremes follow precident, they'll overturn walker and then we'll have however many people who are stuck in some kind of limbo.I've stayed out of this fray for a really long time, especially during the complete absurd phase of this thread. However I'd like to remind people again that for the 9th Circuit of the Federal Courts there is murky precedent at best. In addition there is zero precedent at the level of the Supreme Court of the Unites States. The prior statement was just that, a statement. It had and has no legal bearing on what the Supreme Court can judge in the future.
How can there not be precedent? Baker v. Nelson is a lot clearer than Loving on this. It's not a Federal issue, so Baker's the controlling precedent.
IaNaL, but that's my understanding.
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I dont' expect Walker to issue a stay, which is a damn shame. If the Supremes follow precident, they'll overturn walker and then we'll have however many people who are stuck in some kind of limbo.I've stayed out of this fray for a really long time, especially during the complete absurd phase of this thread. However I'd like to remind people again that for the 9th Circuit of the Federal Courts there is murky precedent at best. In addition there is zero precedent at the level of the Supreme Court of the Unites States. The prior statement was just that, a statement. It had and has no legal bearing on what the Supreme Court can judge in the future.How can there not be precedent? Baker v. Nelson is a lot clearer than Loving on this. It's not a Federal issue, so Baker's the controlling precedent.
IaNaL, but that's my understanding.
I'm not a lawyer either, just to make things clear. But I explained before how Baker v. Nelson was not precedent in this case. Neither the defense nor the plaintiffs argued that Baker v. Nelson would apply, therefore the judges and lawyers in this case seem to agree with me.
Also, it is a Federal issue. While it may end up being overturned on basis that the 14th Amendment to the United States Constitution does not apply, the plaintiffs argument is based on this amendment. To argue this it must be in Federal Courts, not states. Hence why it is in Federal Courts.
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RPG Superstar 2009 Top 32, 2010 Top 8
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Hmm, I don't have the full arguments available, though This piece from Ed Whelan seems to argue that Baker was cited, as well as other cases.
Since the transcript he cites states "“the evidence shows overwhelmingly that … responsible procreation is really at the heart of society’s interest in regulating marriage” (3038:5-8)"
and Baker's decision stated "This familiar restriction, the Court reasoned, did not offend the Due Process Clause because procreation and child rearing were central to the constitutional protection given to marriage.[7]
The Court was not persuaded that an equal-protection violation was present either. Childless heterosexual marriages presented no more than a theoretical imperfection, which doesn't violate the Fourteenth Amendment. The couple's reliance on the recent U.S. Supreme Court decision in Loving v. Virginia (striking down an anti-miscegenation law) also failed: "in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex."[8]
How can they *not* be related?
And again from Wiki:
Because this case came to the Court through mandatory appellate review, the summary dismissal is a decision on the merits of the case.[14] As binding precedent, the Baker decision prevents lower courts from coming to a contrary conclusion when presented with the precise issue the Court necessarily considered in dismissing the case. [15]
Since 14th ammendment issues were raised by Olson, what makes it different?
The problem with comparing SSM to interracial marriage is that with interracial marriage you are making the distinction based on the person, while with SSM you are making the distinction based on the particular relationship.
Actually, prop 8 did just that.
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Since 14th ammendment issues were raised by Olson, what makes it different?
As I explained before, they're in different circuits. A normal old lowest court Federal Court in the 9th Circuit is not bound by any ruling in the 8th Circuit, even if it is by the 8th Circuit Court of Appeals. It may be referenced and the arguments used (and those arguments may even be given more weight), but there is no binding precedent as Judge Walker's Court isn't upheld by the 8th Circuit.
Think of it as somewhat similar to the differentiation between County, State, and Federal laws. If there is a federal law it would affect you no matter where you are in the US; analogous to the SCOTUS. If it's a state law, it would affect you in only that state, but not another state; analogous to the Circuits in the federal court. If it's a county/local law it would only affect you in that county or locatility, but not 20 miles over in the other county; this is analogous to a Federal Courts decision, which only affects a smaller area.
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RPG Superstar 2009 Top 32, 2010 Top 8
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Since 14th ammendment issues were raised by Olson, what makes it different?As I explained before, they're in different circuits. A normal old lowest court Federal Court in the 9th Circuit is not bound by any ruling in the 8th Circuit, even if it is by the 8th Circuit Court of Appeals. It may be referenced and the arguments used (and those arguments may even be given more weight), but there is no binding precedent as Judge Walker's Court isn't upheld by the 8th Circuit.
Think of it as somewhat similar to the differentiation between County, State, and Federal laws. If there is a federal law it would affect you no matter where you are in the US; analogous to the SCOTUS. If it's a state law, it would affect you in only that state, but not another state; analogous to the Circuits in the federal court. If it's a county/local law it would only affect you in that county or locatility, but not 20 miles over in the other county; this is analogous to a Federal Courts decision, which only affects a smaller area.
Ok, I'm not following though. Maybe I'm misreading the entry. If the rejection of the case by the Supremes is considered precedent, then isn't it precedednt for all the courts?
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Someone please tell me there is a place I can go on the net that does not have friken politics. I thought Paizo was one but I guess not. Every time I turn on the TV or radio its nothing but politics, I guess sites about fantasy gaming have finally fallen to the overwhelming bull crap of the mainstream media.
You could have chosen not to click the link to this thread, just as you can choose to not turn the TV or Radio on news channels.
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RPG Superstar 2009 Top 32, 2010 Top 8
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Someone please tell me there is a place I can go on the net that does not have friken politics. I thought Paizo was one but I guess not. Every time I turn on the TV or radio its nothing but politics, I guess sites about fantasy gaming have finally fallen to the overwhelming bull crap of the mainstream media.You could have chosen not to click the link to this thread, just as you can choose to not turn the TV or Radio on news channels.
"Hey Reverend! There are two nobs on the radio! One turns it off, the other changes the frakkin station!" - George Carlin, paraphrased.
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Someone please tell me there is a place I can go on the net that does not have friken politics. I thought Paizo was one but I guess not. Every time I turn on the TV or radio its nothing but politics, I guess sites about fantasy gaming have finally fallen to the overwhelming bull crap of the mainstream media.
you do realize that 98% of this board is non-politics, you scrolled past thousands of non-political threads to get to the section that specifically deals with off-topic discussions, which politics is contained within and then ignored all of the other non-political threads in the OTD boards to trollcrap on one of the maybe 5 active threads that deal with politics. That's a whole lot of skipping other discussions just to come in and complain that you can't get away from political discussions.
I'm guessing that's the same reason you can't get away from politics on TV either, because I know for a fact that the only time my wife ever watches anything political on television is when I turn to the daily show. Other than that, I'm pretty sure there hasn't been much in the way of politics on food network, cartoon network, comedy central, etc. etc. etc.
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RPG Superstar 2009 Top 32, 2010 Top 8
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Hmm, I was just pointed to This article Which seems to indicate in the summary judgement, "I admit Baker pretty much shoots down how I want to rule, but I'm going to ignore it and decide it's not precedent anymore."
(disclaimer: I can't read his ruling on this computer.)
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Ok, I'm not following though. Maybe I'm misreading the entry. If the rejection of the case by the Supremes is considered precedent, then isn't it precedednt for all the courts?
That's the rub. If the Supreme Court had taken the case and given a judgement more than a sentence there would pretty much not be much room for there not being precedent in this case; however the Supreme court gave a one sentence ruling that had less words than the sentence I just wrote. The only precedent then is definitely in the State of Minnesota where the Minnesota Supreme Court ruled against gay marriage, where that precise issue was brought up. The constitutionality of an Amendment to the California Constitution is not the precise same issue as the upholding of a Minnesota law.
Does this make more sense?
Hmm, I was just pointed to This article Which seems to indicate in the summary judgement, "I admit Baker pretty much shoots down how I want to rule, but I'm going to ignore it and decide it's not precedent anymore."
(disclaimer: I can't read his ruling on this computer.)
While that site is blatantly partisan, it does at least give us some information about this 1970 case - Baker v. Nelson.
While the summary decision may be binding, it is not a guarantee.
Taken from wiki (which I'm normally loathe to do):
Application of the Baker precedent
When dealing with precedents like Baker, lower courts may have to guess at the meaning of these unexplained decisions.[16] The Supreme Court has laid out rules, however, to guide lower courts in narrowly applying these summary dispositions:[17]-The facts in the potentially binding case must not bear any legally significant differences to the case under consideration.[18]
-The binding precedent encompasses only the issues presented to the Court, not the reasoning found in the lower court's decision.[19]
-Of the issues presented, only those necessarily decided by the Court in dismissing the case control.[20]
-Subsequent developments by the Court on the relevant doctrines may cast doubt on the continuing validity of a summary judgment.[21]
http://en.wikipedia.org/wiki/Baker_v._Nelson
There seems to be some subtantial "wiggle room" here and, I'd argue, is nowhere near a "slam dunk" against the course of California's prop 8 case.
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Hmm, I was just pointed to This article Which seems to indicate in the summary judgement, "I admit Baker pretty much shoots down how I want to rule, but I'm going to ignore it and decide it's not precedent anymore."
(disclaimer: I can't read his ruling on this computer.)
Read the Update to that link:
UPDATE: A commenter (see below) writes to let me know that Judge Walker did indeed rule on the Baker issue in response to the motion for summary judgment argued last fall. I’ve located the hearing transcript here, and the Court’s ruling on this specific issue begins at page 75 of the court reporter’s transcript. That means, as the commenter correctly points out, that Walker does NOT have to address the issue again in his recent opinion, but the legal issue can still be presented to the 9th Circuit. Where the commenter and I differ, however, is on the legal correctness of Walker’s conclusions.
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RPG Superstar 2009 Top 32, 2010 Top 8
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Read the Update to that link:
UPDATE: A commenter (see below) writes to let me know that Judge Walker did indeed rule on the Baker issue in response to the motion for summary judgment argued last fall. I’ve located the hearing transcript here, and the Court’s ruling on this specific issue begins at page 75 of the court reporter’s transcript. That means, as the commenter correctly points out, that Walker does NOT have to address the issue again in his recent opinion, but the legal issue can still be presented to the 9th Circuit. Where the commenter and I differ, however, is on the legal correctness of Walker’s conclusions.
*nods* Like I said I can't read the summary until I get home. The comments I've read seem to indicate that Lawrence and other cases have made Baker invalid (Score one for Alito! He called that!) but I don't see how a district judge can go "Look, I'm ignoring the precident!"
IaNaL (thank the Divine).
Another comment on the applicability of Baker v. Nelson.
The brief timeline:
-In California, it was determined that the state constitution ALLOWED for same sex couples to have the right to marry.
-Same sex citizens were allowed to marry and many certificates were issued.
-This was then overturned via initiative process (simple majority vote), amending the state constitution with specific language eliminating this right.
-It is argued people were deprived of their rights.
-Thus bringing forth the 14th Amendment - equal protection argument.
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The facts do seem wholly and considerably different from the Baker v. Nelson issue and thus might render it non-binding. Walker may be "ignoring the precedent" because the situation here is so completely unlike the precedent.
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Now, the question basically is: does Baker versus Nelson entitle Defendant-Intervenors/proponents to judgement as a matter of law?
The Court believe that Baker versus Nelson does not settle the dispute that is before the Court in this case. Baker versus Nelson dismissed “for want of a substantial federal question” an appeal from the Minnesota Supreme Court. That Court had held that Minnesota’s marriage statutes did not permit marriage for same-sex couples, and that this restriction did not violate the First, Eighth, Ninth, or Fourteenth Amendments.
A summary dismissal “for want of a substantial federal question” does constitute a decision on the merits; although it is not entitled to full precedential weight.
A summary dismissal prevents a lower court from reaching opposite conclusions on the precise issues presented and necessarily decided in the jurisdictional statement.
Lower federal courts should adhere to the view that if the Court has branded a question insubstantial, it remains so except when “doctrinal developments indicate otherwise.”
If there are later developments that alter or erode the summary disposition’s authority, lower courts are not bound by the Supreme Court’s characterization of the issue presented as insubstantial.
The Court does not agree that Baker is either settled law, or that it addresses the issues plaintiffs have raised here. The jurisdictional statement in Baker dealt with constitutional allegations similar to the challenges in this case, but based on a different set of underlying facts. In Baker, plaintiffs challenged a statute which was interpreted to prohibit same-sex marriage, but was neutral on its face. That is, as stated by the Minnesota Supreme Court, the Minnesota statute at issue in Baker did not contain an express statutory prohibition against same-sex marriage.
Proposition 8, by contrast, is not neutral with respect to same-sex and opposite-sex marriage, but expressly distinguishes them, and limits marriage to the latter.
Unlike in Minnesota, where same-sex marriage had never been recognized, plaintiffs here challenge California voters’ use of the ballot initiative process to strip unmarried gay and lesbian individuals of an existing state constitutional right to marry. Potentially, therefore, Proposition 8 may be invalid, given the history in California, whereas a similar enactment in another state that had never recognized same-sex marriage might not be constitutionally infirm.
In addition, there appear to have been significant doctrinal developments on both Equal Protection and Due Process grounds since Baker was summarily dismissed in 1972.
Supreme Court cases decided since Baker show that the court does not consider “insubstantial a constitutional challenge brought by homosexual individuals” on Euqal Protection or Due Process grounds. The Romer case relied on the Equal Protection clause to invalidate a state constitutional amendment which enough filed specific legal protections for homosexuals.
The court held that home sexuality cannot be singled out for disfavorable treatment, and that the amendment did not further a proper legislative end, but rather classified homosexuals to make them unequal. Plaintiffs’ claims are more similar to those made in Romer than those made in Baker, because plaintiffs are challenging an initiative measure which on its face singles out same-sex from opposite-sex relationships.
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The judgement continues on with more arguments about "doctrinal developments," citing more cases.
Another comment on the applicability of Baker v. Nelson.
The brief timeline:
-In California, it was determined that the state constitution ALLOWED for same sex couples to have the right to marry.
-Same sex citizens were allowed to marry and many certificates were issued.
-This was then overturned via initiative process (simple majority vote), amending the state constitution with specific language eliminating this right.
-It is argued people were deprived of their rights.
-Thus bringing forth the 14th Amendment - equal protection argument.
---
The facts do seem wholly and considerably different from the Baker v. Nelson issue and thus might render it non-binding. Walker may be "ignoring the precedent" because the situation here is so completely unlike the precedent.
Yeah, if I am following the logic from the judge, if you had never given same-sex marriages, then there is no equal protection issue, and thus it would be constitutional. But if you have given same-sex marriages, then take them away, then it is an equal protection issue and thus unconstitutional.
I'm not sure if I buy that logic. On the other hand, if it holds, then this means that only states that have recognized same sex marriage will have this case be precedent for them.
Yeah, if I am following the logic from the judge, if you had never given same-sex marriages, then there is no equal protection issue, and thus it would be constitutional. But if you have given same-sex marriages, then take them away, then it is an equal protection issue and thus unconstitutional.
Bingo. This is precisely why this is so strongly viewed as a violation of the equal protection clause. It is the active elimination of a given right that changes the whole ball game with regard to California.
On the other hand, if it holds, then this means that only states that have recognized same sex marriage will have this case be precedent for them.
Honestly, this should please the states rights crowd if it were ruled this way.