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nathan
Joined: 10 Jul 2006
Posts: 6269
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 Posted: Thu Aug 05, 2010 8:28 pm Post subject: |
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Not that I'm predicting violence. I'm not.
I'm just predicting Fox-con 2.
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nathan
Joined: 10 Jul 2006
Posts: 6269
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| Posted: Thu Aug 05, 2010 9:21 pm Post subject: |
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bee tee dub, for a counterpoint to the importance of Factuousness, it's worth skimming recent content over at Volokh.
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mouse
Joined: 10 Jul 2006
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Location: under the bed
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| Posted: Thu Aug 05, 2010 10:53 pm Post subject: |
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| CTrees wrote: | | Willem wrote: | | Am I right in thinking that, while they can still be overturned, these are pretty much law now? |
In that jurisdiction, those points have some precedent. However, while the striking down of prop 8 is binding unless overturned, and would prohibit similar laws (in light of a very quick strike down if passed), the actual facts may be found differently in a different case if they experts are different or the judge feels differently. So... those are cool, and yeah, it's persuasive, but there's not much weight to them; they're just in the category of "this is why I made my decision," instead of "this is my decision, which must be obeyed." |
ehhh - that's not what the analysts are saying.
| Quote: | | The ultimate outcome of the California case cannot be predicted, but appeals court judges and the justices at the highest court in the land could find themselves boxed in by the careful logic and structure of Judge Vaughn R. Walker’s opinion, legal experts said. |
according to them, the way he structured this will make it hard(er) to overturn, as he made findings of fact (which are generally accepted by the higher court, unless they are clearly wrong), and he held the law to a standard the most other laws meet, which means he didn't set the bar unreasonably high. so yeah, the way he phrased his decision does carry considerable weight.
of course the current supreme court has already demonstrated that it in fact has very little respect for all the things like precedent and lack of judicial activism and all those things they swore by before they were confirmed, so yeah, they could just toss it. and it will go down in history with bush v. gore, as a decision clearly made for political, rather than judicial, reasons.
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mouse
Joined: 10 Jul 2006
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| Posted: Thu Aug 05, 2010 10:59 pm Post subject: |
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| Unnamed? wrote: | I found an interesting piece on how some non/semi-non bigots might have been in favor of proposition 8. It's an interesting read and I think it's a reasonably feasible look at what many people on the other side really think.
Most of the material comes from a book, so many of you might already be familiar with this thesis. |
this is interesting, although i doubt most of the red-state people would really be able to enunciate this line of logic. i suspect it has more to do with a) the uneasy sense that things are changing; b) the undefined sense that gays are having a lot more fun than they (the heterosexuals) were allowed to have; so c) they (the heterosexuals) are clearly getting the short end of the stick. somehow. again. and they are tired of other people getting all the good stuff, when they work hard and do all the right things, and don't.
and then the minister keeps preaching against it, so that must be it.
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nathan
Joined: 10 Jul 2006
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| Posted: Fri Aug 06, 2010 2:46 am Post subject: |
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| Dave Hoffman wrote: | | But there are facts, and then there are constitutional facts. Almost every “fact” identified by Judge Walker is of the latter type — “Sexual orientation is a fundamental characteristic of a human being.”; “marriage is widely regarded as the definitive expression of love and commitment in the United States.”; “permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages”, etc. It is exceedingly unlikely that any appellate judge or Supreme Court Justice would feel compelled to defer to these factual judgments. |
Particularly given the historic nature of the case and its massive downstream entailments, I can't imagine Roberts et. al. using these types of declarations as "facts of the matter" or starting preconditions from which they derive their judgment. And it wouldn't be a case of "ignoring" precedent. "Facts" exist on a scale.
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WheelsOfConfusion
Joined: 09 Jul 2006
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| Posted: Fri Aug 06, 2010 4:11 am Post subject: |
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| How much choice do they have? All of it is based on testimony presented during the trial or prior case law and sticks closely to that. |
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mouse
Joined: 10 Jul 2006
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| Posted: Fri Aug 06, 2010 8:02 pm Post subject: |
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well, the supremes might argue with the first statement (sexual orientation as a fundamental characteristic). it seems unlikely that they they would oppose the second (they're going to say marriage is _not_ an expression of commitment? - besides, the only alternative is the marriage-is-just-for-procreation one, and that might hit a bit close to home for some of them). the rest has been demonstrated in studies....well, we will just have to wait and see.
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tinkeringIdiot
Joined: 13 Oct 2008
Posts: 1057
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| Posted: Fri Aug 06, 2010 8:17 pm Post subject: |
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| Take your "studies" back to your ivory tower and Eat a baby cake, Liberal |
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mouse
Joined: 10 Jul 2006
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| Posted: Fri Aug 06, 2010 8:30 pm Post subject: |
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mmmmm, babies........
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WheelsOfConfusion
Joined: 09 Jul 2006
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| Posted: Fri Aug 06, 2010 8:40 pm Post subject: |
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| mouse wrote: | | well, the supremes might argue with the first statement (sexual orientation as a fundamental characteristic). |
They might carry on a debate, but I have a hard time thinking that even Scalia would disagree with that finding of fact.
| Quote: | | the rest has been demonstrated in studies....well, we will just have to wait and see. |
I really don't see how they'd have legitimate grounds to dismiss the findings of fact that were based on scientific literature and entered into evidence when they're relevant to the question of same-sex marriage and a state's interests in outlawing it. |
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mouse
Joined: 10 Jul 2006
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| Posted: Fri Aug 06, 2010 9:08 pm Post subject: |
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logically, i don't think they can.
but i have had a few problems with this court's logic in the past.
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Thy Brilliance
Joined: 09 Jul 2006
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| Posted: Sat Aug 07, 2010 12:53 am Post subject: Short term pleasures are to be worshiped. |
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| WheelsOfConfusion wrote: | | Sam the Eagle wrote: | | There is a huge groundwork of explaination/teaching to do. |
The anti-gays are already well aware of those efforts. One of the Yes on Prop. 8 commercials cited at the trial invokes with the idea of educating children to be tolerant of homosexuality. Can't have that, can we? Our children must remain intolerant! Teaching children that gay marriage is acceptable will obviously turn our children gay, too! I WANNA MARRY A PRINCESS!
| Unnamed? wrote: | | I found an interesting piece on how some non/semi-non bigots might have been in favor of proposition 8. It's an interesting read and I think it's a reasonably feasible look at what many people on the other side really think. |
Yeah, the rhetoric of keeping "traditional families" around in the face of the Progressives revising culture willy-nilly. That all came out at the trial as well, and it's part of what was talked about earlier where the counsel for the Prop. 8 side admitted he didn't know how such a thing could happen.
| Quote: | | At oral argument on proponents' motion for summary judgment, the court posed to proponents' counsel the assumption that “the state's interest in marriage is procreative" and inquired how permitting same-sex marriage impairs or adversely affects that interest. Doc #228 at 21. Counsel replied that the inquiry was “not the legally relevant question,” id, but when pressed for an answer, counsel replied: “Your honor, my answer is: I don't know. I don’t know.” Id at 23. |
None of their experts could establish even a theoretical mechanism linking the legalization of same-sex marriage and the decline of heterosexual marriages, even if their arguments hadn't been thrown out.
So while I think there is something to this Red Families idea about sex/marriage/creating adults, I don't think that's enough to displace the element of bigotry as the primary motivation. |
Our children sure are going to have sex forced down their throats. |
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Mr Gary
Joined: 30 Apr 2009
Posts: 6165
Location: Some pub in England
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| Posted: Sat Aug 07, 2010 1:20 am Post subject: |
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Yay & stuff everyone. Just one phrase keeps catching my eye, and my tiny under-educated brain keeps asking the same question, some of you sociological types might answer for me.
WTF is the traditional family and how traditional is it? Surely the nuclear family is historically a recent invention, like the steam engine or Jersey Shore?
Anyway ...
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Unnamed?
Joined: 14 Apr 2007
Posts: 224
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| Posted: Sat Aug 07, 2010 1:28 am Post subject: |
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| The only part of "traditional" that the proponents of prop 8 really seem to care about is the "man and woman only" part. That's been around for...well a while. |
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Mr Gary
Joined: 30 Apr 2009
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Location: Some pub in England
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| Posted: Sat Aug 07, 2010 1:32 am Post subject: |
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Is that true, though? Wouldn't they be equally scandalised & vociferous in their opposition to harem relationships, etc? Not important mind, I feel I'm kind of intruding in here with irrelevancy.
*edit: spelling*
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