The judge, the people of California, and Prop 8
Federal Judge Vaughn Walker has ruled in the case of Perry v. Schwarzenegger that Proposition 8, approved by the people of California and restricting marriage in that state to being between a man and a women, violates the Equal Protection Clause (14th Amendment) of the US Constitution.
This raises the question: how best to balance the stated desire of the people of California—to adhere to a long-held tradition about marriage—against the decision of a single federal judge in California that the traditional man/woman restriction of marriage can be safely jettisoned, and in fact must be jettisoned, in order to preserve gay rights? Is this a case of judicial activism run amok, or is it a desirable and timely extension of basic rights to a group that has been deprived of them for too long?
I don’t write much about gay marriage, because I am not clear in my mind on what is the best thing to do about it. Both sides have a great deal of merit, IMHO. So it helps me to look at this case in a more narrow legal sense, as an issue of whether the judge was correct under the law to extend the Equal Protection Clause to cover gay marriages as follows:
“The Equal Protection Clause renders Proposition 8 unconstitutional under any standard of review”¦”¦.excluding same-sex couples from marriage is simply not rationally related to a legitimate state interest,” Walker wrote in his 136-page decision. He suggested that opponents of same-sex marriage had few arguments to bolster their position beyond the claim that marriage is traditionally between men and women, and there are few historical precedents for allowing homosexual unions.
Let’s take a look at the relevant words in the Equal Protection Clause, passed shortly after the Civil War to invalidate the so-called Black Codes, which were attempts by some of the defeated southern states to deprive the newly-freed black slaves of their rights and make of them second-class citizens:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Slowly but surely, in a series of cases that were brought before the Supreme Court over many decades, the Clause was used to expand the rights of blacks, first to have juries that were not totally white, then to be allowed into public places like theaters, modes of transportation, inns, and the like. The expansion of the Clause was dealt a temporary blow by Plessy v. Ferguson, which established “separate but equal,” but was overruled in 1954 by Brown v. Brown of Education.
Later rulings beyond Brown expanded the Clause still further to encompass the prohibition of discrimination on the basis of sex, which was determined to dictate what was called intermediate scrutiny: that is, such a law was to be considered unconstitutional unless it is “substantially related” to an “important government interest.” Laws that involve possible discrimination on some basis other than race or sex are subject to a different standard: the rational-basis test, which means that such a law is presumed to be constitutional as long as it is “reasonably related” to a “legitimate government interest.” Here at last we recognize a version of the language used by Judge Walker in the Prop 8 case; when he said the prohibition on same sex marriage is “not rationally related to a legitimate state interest,” he is using the rational-basis test.
And that is where we stand. Judge Walker thinks Prop 8 fails the rational basis test. But excellent arguments can be made to the contrary (although from what I read, the arguments made in the present case by the side defending Prop 8 were poorly presented). The Supreme Court (or five out of nine of the Justices, which is all it takes to render a decision) may buy those arguments, unlike Judge Walker.
The way some of those arguments might go would be that the right to marry is not absolute and that there are still several allowable restrictions (such as the laws against incest, for example), that the state has long had an interest in regulating marriage, that it is (and always has been) an essential quality of marriage that it be between a man and a woman, and that a state also has a compelling interest in allowing its citizens to vote to determine the rules about marriage as long as they do not obviously violate the Equal Protection Clause, and that there should be a very high standard of proof necessary to prove discrimination to the degree that it would invalidate such a law passed by its citizens on a matter that is not as clearly protected by the 14th Amendment (not race and not sex, but sexual orientation, as in this case).
In some ways, the very strangest statement Judge Walker made was this one:
Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage.
Judge Walker may not like it or approve of Proposition 8. He may even think it clearly violates the Equal Protection Clause, and he may want to overturn it. But the fact is that such gender restrictions were a tremendously central part of the historical core of the institution of marriage. They go back thousands of years, to Genesis (and even earlier). Although the following quote is religious, it is also a huge and central part of the historical and cultural core of the institution of marriage in our culture:
The man said,
“This is now bone of my bones
and flesh of my flesh;
she shall be called ”˜woman,’
for she was taken out of man.”24 For this reason a man will leave his father and mother and be united to his wife, and they will become one flesh.
The judge relies on social science testimony presented during the trial to justify his ruling that throwing out this idea doesn’t really matter, and won’t matter in the future. But social science research and its vagaries are a very shaky foundation on which to rest such a striking and basic change in an institution central to our lives.
[NOTE: Some interesting and related questions are discussed here, here, and here.]
It may be a silly question but why wouldn’t Judge Walker have to recuse himself on this issue?
ISTM that a problem with the “rational interest” argument is that we don’t know what the effects of legalized gay marriage will be on society. To declare that the state has no rational interest in radically changing the institution of marriage seems to me to be purely a statement of opinion. (IANAL and I’m not going to read the ruling… so I may be blowing smoke. Possibly the judge had all kinds of studies and statistics indicating that legalizing gay marriage produces no deleterious effect on a pluralistic and overtly [and often church- and synagogue-going] Judeo-Christian society such as ours.)
I heard on NPR this morning, however, that the judge had based his ruling on findings of fact rather than on interpretation of law, and that therefore the appeals court was likely to uphold it. And THAT sounds to me as if NPR was engaging in a little bit of wishful thinking. Which would be nothing new. Side note: it really offends me that they call themselves *National* *Public* Radio and decry “hyperpartisanship on the right” when virtually NEVER EVER do they have a commentator or interviewee (and NEVER an intervierER) with whom I agree.
As to gay marriage: I’m so torn; my heart wants to say “Sure, why not? Happy married people are good, right?” But my head says, “What about the marginal effects?” I don’t know what to do.
Like when a gay couple sues a priest because he will not marry them. And of course wins.
My gay friend (who has not spoken to me in over a year when he found out that I voted for prop 8) assures me this will never happen.
I hate to sound negative, but I do not believe him.
You can put a shoe in the oven, but that doesn’t make it a biscuit. The meaning of marriage has been around for thousands of years.
I’ve never understood the equal rights argument. A gay man has the same right to marry a woman as a straight man. He may not care to, but he has the right.
If you google the 45 aims of the Communist Party in America that are aimed at destroying America’s fabric, this is one of them.Normalize homosexuality.It was a very short time ago that the APA listed it as deviant behavior.
Gives one pause.Why this issue after thousands of years?Who actually is advocating gay marriage and why?Where is the money coming from?
Michael is right. If this decision is upheld, it’s only a matter of time before religious institutions are punished for refusing to perform gay marriages, or even for criticizing homosexuality.
Rush said today that this is only tangentially about gay marriage. It’s really about a minority dictating to the majority, and Federal judges flouting the clearly expressed will of the voters of California.
The history of the campaign for gay marriage is of some interest. Before the advent of AIDs back in the 80s, the gay community was almost completely uninterested in marriage or sexual monogamy. However, when AIDs and the attendant health care costs became a factor, many found themselves in relationships where one person had health insurance and the other didn’t. Suddenly the health benefits that were attached to a legal arrangement like marriage became an issue for them.
About a year ago I heard a gay marriage advocate on talk radio proclaiming that the gay community wanted the 101 financial benefits that came to couples who were recognized by the state as married. I don’t know what all those 101 benefits are exactly, but his proclamation seemed to me to advertise the true motivation behind this major push for gay marriage.
It is entirely possible for a gay couple who wants to jump through the proper hoops to set up a legal partnership that provides all the financial benefits (and drawbacks if you throw in divorce) that married couples enjoy. But I guess that would be too much trouble. The alternative would be for states to pass laws that give legal status to same sex unions and call them domestic partnerships or some such name. It would provide the financial benefits of marriage, but distinguish it as being something other than traditional marriage. Would that satisfy their demands? I doubt it because I think the gay community and their supporters have convinced themselves that this is an issue of civil rights, and they will not be mollified by anything but total surrender to their demands. And so it goes.
Stark: I thought about the question of the judge recusing himself because he’s gay. It doesn’t hold water. Do women judges have to recuse themselves when deciding questions involving allegations of discrimination against women? Black judges involving racial discrimination against blacks? Of course not. Being a member of the class or group involved is not the same as a personal conflict of interest.
Jamie: the judge called them findings of fact. But I’ve read discussions (mostly at volokh.com, in the comments sections) saying that the Supreme Court probably won’t buy that. The decision is too big, the “facts” too uncertain.
Uh, yeah. You’d think. This was kinda like asking a pig’s views on bacon.
I believe that Walker was assigned purely at random. Not as much as I believe in the Easter Bunny, mind you, but I do believe it.
Bullseye. As Lincoln (the only good Republican, and not just because he’s dead) famously said, “How many legs does a dog have if you call the tail a leg? Four. Calling a tail a leg doesn’t make it a leg.”
This situation results from the unholy union (going to be a lot of those around soon, apparently) between homosexuals and communists. What homosexuals really want, I suspect, is acceptance and validation, not only from society but more importantly from themselves. Ain’t gonna happen.
Communists want to undermine society to rebuild it to suit their agenda. Destroying the family is critical to this, because individuals feel family ties more strongly than those to the state. That’s why socialists of all stripes, international and national, draw a bead on normal nuclear families: they want each individual’s highest allegiance to be to the state, so they can create New Socialist Man. They still think infants are tabulae rasae who can be inculcated with socialist values if only they’re indoctrinated early enough, and ideally away from family influence.
Women are the key to resisting this. The kibbutzes, IIRC (correct me if I’m wrong), started out in true socialist fashion with separate barracks for men, women, and children. Ultimately, however, women rebelled at being separated from their husbands and especially their children. Once families live together as a family unit, they want to look out first and foremost for its members, never mind the collective. That’s why the family has a target on its back. Communist support for homosexual marriage is a cynical strategy to destroy families by making marriage — real marriage, not the mock kind — into a joke.
Occam’s Beard: see my answer about recusing in my comment above at 6:47 PM.
neo, I did see it, after I commented.
Judge Walker said : “Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage.’
Reminds me of what a presumed gay co-worker once said to me. He claimed , about marriage, that when we look at other societies we see what we want to see concerning men and women marrying. Which is total baloney! There are polygamous societies where men have multiple wives. Rarer in form is the opposite where one woman has multiple husbands. I have heard of societies where young males were some sort of child bride to perverted men. But this is not the norm! The most common seems to be male/ female marriage with the main variance being whether multiple wives were allowed.
I haven’t read the decision either — too difficult to clean up the blood that would be spurting from my eyes — but sight unseen I dismiss the studies and statistics. Homosexual groups have been generating bogus studies and statistics since forever, and God knows communists can produce such to prove gravity doesn’t exist. (For example, a recent “study” claimed that sons raised by two lesbians turned out just fine, happy, well-adjusted, no problem here. Turned out that 1) the study was generated and paid for by a homosexual advocacy group, and 2) their “data” were self-reports from the lesbians. Rock hard methodology.)
It’s a given. Forty years ago homosexuals made the same statements about marriage. They didn’t want to interfere in normal marriage, they just wanted to live their lives as they saw fit. Yet here we are.
Next up: lowering the age of consent for homosexuals to, say, 12. Legalizing pederasty — something I have no doubt they’ve wanted to do since the fall of Greece — is warming up in the bullpen. It will happen. Absolutely guaranteed.
Occam’s Beard: yes, the judge did have those statistics. That’s what I was referring to in the last paragraph of my post.
Occam’s Beard:
In addition to pederasty, another beneficiary of this decision will be polygamy under Sharia law.
Seven million California voters vs. One gay judge.
Co-in-ci-dence?
Of course he did. Were they from East Anglia, or the NAMBLA Research Institute?
The point re recusal is that we can hardly expect an even-handed approach when the decider of fact is a party directly at interest in the outcome. Moreover, even if he were capable of disentangling his own interests from the case – which I think is plainly impossible here – it looks bad, and so flunks the “Caesar’s wife” consideration. (Perhaps I should say “Caesar’s spousal unit(s).”)
This is particularly true when the nominal defender of Prop. 8 was Jerry Brown, who made no secret where his sympathies lay, who wants homosexual support for his gubernatorial campaign to finish off California, and so apparently went into the tank (according to reports that the state presented little in defense of Prop. 8). Kinda makes you wonder why we bother holding elections.
Sorry, this whole business pisses me off. I’ve lived too long. This is much like Obama’s election: it’s obvious what’s going to happen, and having to put up with morons prattling that it’ll all be fine, and that the next stage won’t happen, no, never, not ever. And knowing sure as God made green apples, it will.
This does not apply to those who do not call themselves Christians, rather it applies to those who do call themselves Christians and find these priest and preachers who say “committed homosexual relationships are ok”:
2 Timothy 4: 3-4: “For the time will come when men will not put up with sound doctrine. Instead, to suit their own desires, they will gather around them a great number of teachers to say what their itching ears want to hear.
4 They will turn their ears away from the truth and turn aside to myths.” (NIV Translation)
I was actually having a discussion on Facebook with a friend of mine about this… Well, a “comment” discussion anyways, not a real back and forth. Now I will admit, I had not, at the time, read really any of the decision, other than the excerpts from various sources. The discussion prompted me to actually grab a copy of the decision, and read the portion concerning the Judge’s opinion. Here’s my last (and largely unanswered post, dissecting the most disgusting and, to me, outrageous portions of the decision):
So I assume that you would be perfectly ok with polygamy? If, as Judge Walker states, "This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment." (Loving v Virginia), that argument could very well be used as pro polygamy. So long as all parties choose it, what's the problem? And if denial of such a union is voted on by the people, passed through the Legislative Process on either the Federal or State level, does that not deny said "fundamental right" (Turner v Safely)?
There are many parts of this decision that I disagree with. For one, I fail to see how marriage is protected under the Due Process clause of the 14th Amendment. If you go back and look at the intent of the 14th Amendment, Section 1 (Equal protection/Due Process) was inserted to deal with specific portions concerning former slaves and all of their children, such as guarantee them citizenship, and guarantee that citizens will not be held indefinitely without trial, without reason, made into "2nd class citizens", etc. Essentially, that portion of it really just expands upon what was started with the 4th Amendment.
This has been expanded upon in the last 40 years or so, and taken wholly out of context in that you can now use Due Process/Equal Protection to refer to just about anything. I hardly believe that those who wrote the amendment had sex, marriage, or many of the other arguments that clause has come to blanket, in mind when they wrote it.
Also, his opinion that "By 'reserving the historic and highly respected designation of marriage exclusively to opposite-sex couples while offering same-sex couples only the new and unfamiliar designation of domestic partnership,' the state communicates the 'official view that [same-sex couples'] committed relationships are of lesser stature than the comparable relationships of opposite-sex couples.'" is simply that. An opinion. If the "domestic partnership" handles visitation, taxes, etc., and would otherwise grant all rights that marriage grants, solely with a different name, what right is being infringed ([name here], if I'm reading this right, what this judge is trying to grant is use of the TERM, and it has NOTHING to do with the rights in the eyes of the law. Now granted, I have not read the "domestic partnership", so I could be wrong, but the argument issued by the judge right there has no legal basis at all, and is based SOLELY on his opinion. Opinions and hypotheticals have very little place in law. Law should deal with fact.).
Likewise, it doesn't matter what the "symbolic disparity between domestic partnership and marriage" is. Again, that is opinion. In this case, it is the opinion of both the proponents and opponents, but once again, it's irrelevant. My Honda doesn't have the same symbol as a Porsche, and all that implies, but that doesn't somehow guarantee me the right to a Porsche. Nor would I expect that everyone who has a Porsche be stripped of that Porsche and told they must buy a Honda. In the end, they're both still cars, for the purpose of getting me from point a to point b. They simply have a different name/status/symbol.
Again, on pages 115 and 116 of the opinion (117 and 118 in the PDF version I read) again make the argument that he is after the term "marriage".
I could continue through this, but the point being, I believe that this is a very bad decision, and the arguments presented do a very poor job at convincing me that same sex couples have a right to the word "marriage". But that's what was ruled on in the case. The arguments he uses, to me, fall flat. Especially when in light of the "domestic partnership" offered in California (as the judge refers to on several occasions).
The quote:
"That the majority of California voters supported Proposition 8 is irrelevant, as “fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections.” (Quoting a 1943 U.S. Supreme Court case)"
looks good, but I believe that it is irrelevant in this instance, and what happened yesterday was that 1 man overturned the voices of the majority of California voters because of his opinion. So now, this will be taken to the Supreme Court, and once again, the 10th Amendment will be tossed out the door, regardless of the decision.
I stand by this, and am really wondering why other people are not even mentioning this portion of the decision. So much of his decision is built on the idea that the symbolism is different, and that gay couples have the right to the symbol/meaning of the word “marriage”, which I wholeheartedly disagree with.
The other portion I really don’t understand is why people are not pointing out that California already has laws for “Domestic Partnerships” (see here) that, while I am still looking into it, appears to grant the privileges in the eyes of the government (visitation, tax purposes, etc) to same sex couples, yet with a different name…
I may be missing something here. It seems like the judge’s comments on “rational basis”, and much of the discussion on Volokh, concerns the societal impact of gay people becoming couples, raising children and acting as “married people”. But all that happens now in CA and has for some time. Prop 8 doesn’t change any of that. The question is what to call that union.
There may be impacts on whether a union is recognized elsewhere, that might be a valid point to debate, but the societal impacts of gay parenting are irrelevant, it happens in either case.
There is no argument for gay marriage that cannot be employed to argue in favor of incestuous marriage or polygamy.
A better example of “begging the question” cannot be found.
Yes, we gathered that.
I don’t trust that the activists will stop at SSM. I fear that they will use this victory to continue to push for more. What is next–quotas for homosexual adoptive parents? Many early supporters of legal abortion were reacting to the horrible effects self-induced or illegal abortions on desparate women. I doubt that many thought 15 years olds would be able to have abortions without the knowledge of their parents or that abortions would be performed in the last weeks of pregnancy. These down-the-road effects do change the way society thinks about children. I haven’t seen much questioning about such things among SSM advocates. I fear that their will be much more coming with regard to paid surrogate mothers and custody fights. I am also not sure that experiences in other countries can be applied directly to the US with its lawsuit culture and oversupply of ambulance chasers. I wish I had seen more evidence that the homosexual community had thought about such things. I wish they had taken some time after achieving civil unions to think about issues larger than their own desires.
Think we’ll hear much about other countries (read: Europe) when the Muslims call the shots? Somehow I doubt it.
Michael suggests that it might not be long before a gay couple could sue a priest for refusing to marry them. That may seem far-fetched, but it isn’t. It’s already the case that in Massachusetts, Catholic Charities has chosen to withdraw from adoption services rather than be forced to comply with a state law requiring that gays be allowed to adopt. In May, the Saskatchewan Court of Appeal heard arguments over whether a Baptist marriage commissioner is free to refuse to perform a gay marriage rite irrespective of his religious beliefs. I do not know whether a decision has been handed down in the case, but its very existence at such a high judicial level indicates that people’s fears in such a regard are not groundless, or even far-fetched. Additionally, there have been several employment discrimination cases either threatened or actually brought over whether explicitly religious institutions, such as Catholic parochial schools, are free to refuse the hiring of openly gay teachers. The implications of these matters in our country, where religion and its free exercise are (at least for now) Constitutionally protected, should not be underestimated.
I, like neo, am not exactly sure what I think should be done in the broad matter of gay marriage, but I think without reservation that we must draw some very clear lines with respect to (what seem to me to be) such straight-forward free exercise matters.
And I, like Michael, have a very dear gay friend with whom I’ve had a couple of pretty bruising arguments over these matters. We haven’t stopped speaking, but there’s not much depth to our friendship any longer, beyond the depth of our disagreement. She knows I’m not opposed, necessarily, to gay marriage, but she rejects, with a fair bit of bitterness, the notion that free exercise of religion should trump what she regards as her marriage rights and choice of partner, or any of the tangential matters I mentioned above. No ground for compromise or mutual accommodation has emerged, and believe me we’ve looked for it.
So–another one of those socially divisive issues we seem to encounter at every turn these days, then. What a fractured society we have become.
Occam’s,
It’s not just that. Several years ago, Germany debated the SSM issue. A civil union compromise was reached and the issue died down. The same thing happened with abortion: The compromise is much more restrictive than American law, yet there are no Pelosi types pushing for more, at least not very loudly. Germany seems to direct its radicals toward green issues and pacifism (and dumping on the US).
Quoted from nyght above:
as Judge Walker states, “This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.”
Can I marry my dog? Just saying.
What’s confounding is Judge’s notion that ruling on this matter is within his authority at all. Judicial tyranny, much? It would surprise me if the majority opinion when this reaches the SC isn’t to defer to the State’s decision – the substance of the issue isn’t an item for their consideration, Constitutionally speaking. Here’s hoping they’ve read it.
I can’t stand homosexual in your face activism now. Imagine the level it’s going to get to. More than anything i detest the ruthless and unmerciful people Americans are going to have to become to stop this insanity.
Anybody who says that homosexual activists are not already planning to sue churches some day is either ignorant, naive, or lying.
Maybe fundamental rights don’t depend on the outcome of elections; they sure have depended on the outcome of wars, though.
“More than anything i detest the ruthless and unmerciful people Americans are going to have to become to stop this insanity.” True that. Unless the Islamists win first, then they’ll take care of it.
Some time ago. going around with some libs on the subject, I mentioned that there are various folks opposed to marriage in any form, feminists of the misandryist persuasion and others, for example.
Some of them had opined that gay marriage would help them.
I was condemned, but another poster rounded up a bunch of quotes.
Interesting.
Thing is, gays aren’t even pretending to be a married couple in the traditional sense. Andrew Sullivan mentioned how it would have to be modified to take into account “the complicated lives of gay men”.
Fidelity, except for the partner who expects to cruise.
Will we need a separate service?
Will it be marriage lite?
Will it discourage those at the margins who need more social support and urging to marry straight than the rest of us?
If the judge can reverse the ban on same sex marriage using his rationale, then polygamy and incest marriage should also be legal. That’s not going to happen!
To be honest, I really don’t care if gays and lesbians can marry or not – let God judge.
What I know is coming next is, they will then demand that same sex marriage be taught in school as natural and normal. I don’t want my grandchildren taught that – that is the parents’ role.
A civil union with whatever rights come with that would work – just don’t try to force it on everyone else as “natural”!
Just BTW (an acronym I can interpret), it occurs to me that the whole aura around the word, “homophobia” is totally wrong. Most people seem to have acquiesced in the implicit labeling of the anti-gay political agenda as being pathological, and the use of “homophobia” is rarely, if ever, questioned–at least as far as I can see.
But wait a moment. I deny that my opposition to the gay agenda is a pathology. I absolutely deny it.
Does no one else think it’s wrong to so label a political position, to make it pathological?
Stand up, people! We’re not by definition sick, based upon our political opinions!
Neo, on reflection, I respectfully reject this argument. The argument implicitly assumes that membership in a class or group, without more, is the same regardless of the group in question. In fact, membership in some groups is more likely to lead to conflict of interest — or, just as bad, the appearance of such conflict – than that in others. A blue-eyed judge needn’t recuse himself from a case involving a blue-eyed litigant; no one would worry about their common trait influencing the judge’s impartiality. That’s an entirely different matter from a judge belonging to the KKK adjudicating a civil rights case (to choose an absurd but illustrative example, and one rather close to the present situation). Similarly, we would not just expect but demand that a judge recuse himself from a legal dispute that involved a family member, or even a friend, of his.
So the precise nature of the membership, and the likelihood of that membership adversely influencing the judge’s impartiality, needs to be considered, not the mere fact of membership. The controlling principle is the likelihood that such membership would influence, or could be seen to have influenced, the judge’s decision. Let’s face it, on learning that the case regarding a homosexual cause celebre would be decided by a San Francisco homosexual, we would have decided that it was all over but the shouting. And so it is.
As a lesbian who was in an almost-12-year relationship (the point being that it was longer than many marriages I’ve known), I’d just like to say that if marriage is a virtually meaningless institution anymore, which I think it is, it’s due to heterosexuals, not gays. Just look at Hollywood. Sports. Politics. Sickening really. We forget that divorce used to be a real source of shame. Jesus himself (a Jew but also a voice for Christians) several times harangued Israel for divorce but never said a word about homosexuals. (Only Paul and his cohorts speak to this issue.) One wonders why there is no longer a stigma related to divorce; could it be that it’s rather convenient for straight people?
That said, I know not one gay couple that has gotten “married” in recent years who are still together (except for my former partner and her long-time companion, who got married in Canada). If I’m not mistaken, the lesbian couple in Massachusetts who were part of the first big court ruling have since split. I believe, as other commentors have noted, that the movement for gay marriage has more to do with wanting to be accepted than with being legally bound to another person in the traditional, historical sense.
Marriage is to love as religion is to God, only tangentially related through culture. I for one would like to see a good deal more concern for love than with the constructs and restrictions of marriage.
Absolutely true. The Muslims would put a stop to this PDQ, as would, ironically, the communists. Despite their advocacy of homosexual issues in the US now, historically once in power socialists of all stripes, international and national, have taken a very dim view of the practice. For example, Cuba bans homosexual marriage, prevents homosexuals from serving in the military, does not prohibit discrimination against them. Castro himself, on taking power, denounced homosexuality as a hangover from the Batista era, imprisoned homosexuals in rehabilitation camps, and later deported them as social undesirables in the Mariel boatlift.
I think this is an interesting paragraph in the ruling. (let’s hope I did the blockquote XHTML right…)
So, votes don’t matter if they don’t have a basis in rationality? Interesting! Someone should tell Congress and get this healthcare reform cancelled.
It’s all headed for SCOTUS:this, Texas vs EPA, the Arizona case, the DOMA case from Massachusetts, perhaps the various Obamacare. If the Republic falls to judicial tyranny, that’s where it will happen, and then, I don’t know know, but it won’t be good.
Is there an equation for all this?
The People
less than The Bureaucrats less than The Legislators less than The Judges less than The Academics less than The Activists.
So the solution is to debase it further?
The part that the homosexuals don’t get is that marriage is not about the adults involved; it’s primary purpose in social policy is to provide for nurturing of children, if any. (I know: not every marrying couple wants children, or will/can have children, but that’s irrelevant to the public policy purpose of the institution.) The purpose is to avoid society as a whole ending up living like the black underclass, with impoverished mothers having N kids by N different fathers, the fatherless boys becoming gang members and criminals, the girls becoming mothers themselves in their mid-teens and living on welfare.
It’s much the same as celebrities adopting kids as fashion accessories, nothing more. They should go to the pound and get a dog. It’s essentially what they’re doing, except the stray they come back with is a child.
Bagley: although many of the arguments are indeed the same, there is one argument for gay marriage that differs from that for incest or polygamy: that of a protected class of people who (according to the reasoning in the ruling) are not that way by choice but by birth—gay people—who are denied equal protection. People who want to marry their relatives or to have multiple spouses are not that way by biology or birth, but are making choices. The argument about sexual orientation (whether you buy it or not) is that it’s not a choice.
The pro-incest/polygamy arguments, however, could be mounted as arguments for religious or cultural freedom. Mormons used to believe in polygamy and some still do, and certain cultures practice various forms of incest. But that’s a different argument than the one used in this case.
@ Leslie 11:18 p.m. Beat you to it, by 7 years:
“I would like to add that our society was set on this course when it became widely accepted that (1) sex is not properly related to procreation, (2) sex is not properly related to marriage, and (3) marriage is not really a life-long exclusive commitment. IOW, when immoral behavior among heterosexual adults became widely accepted.” Fri. 07/11/03 01:06:09 PM
http://weblog.theviewfromthecore.com/2003_07/ind_002095.html
neo, that’s an argument about love, not about marriage. Marriage is also a choice, and one where you don’t necessarily get to marry whom you love. This is particularly true in the case of arranged marriage, which has been so prevalent around the world and over time that it deserves a place in the discussion.
OB is right about the social purposes of restrictive, monogamous marriage that have nothing to do with religion or love. Restrictions are at the heart of the institution. It has been terribly weakened and confused by adding to the mix romantic love, ideas about self-actualization, and easy exit.
@ neo-neocom 11:38 p.m.
“Bagley: although many of the arguments are indeed the same, there is one argument for gay marriage that differs from that for incest or polygamy: that of a protected class of people who (according to the reasoning in the ruling) are not that way by choice but by birth–gay people–who are denied equal protection….”
What about the adults whose only “crime” is their sexual attraction to children? They don’t choose to be that way, etc., ad nauseam….
See my link above for signs that we are already seeing the early steps towards “normalization” of pedophilia, corresponding to what was started with homosexuality decades ago.
He says, before nailing the voters in the keister, SF style.
Ah, here’s our problem. He’s a closet liberal too, with a fetish for “experts.” The considered views of scholars and experts should never outweigh the determinations of the voters. Never. I believe it’s called “democracy.” If experts actually had the knowledge and wisdom he’s implicitly imputing to them, we’d have them run everything — the liberal utopia. Command economy, central planning, industrial policy, here we come!
Vaughan, here’s a news flash: objectively, experts don’t know shit. I know — in some contexts, I am one. Laymen are wrong 99% of the time. Experts are wrong 98% of the time, on a good day, and they don’t have many of those.
A few examples. How’s Long Term Capital Management doing? Oh. Remind me again how many economics Nobel Laureates they had?
William Thomson (Lord Kelvin), probably the greatest physicist of his day, famously disparaged the possibility of heavier-than-air flight, or communicating by radio waves. Oops.
The tipoff is that experts commonly disagree, often violently. At most one of them is right on any given issue. Surely a Federal district court judge must have noticed that Supreme Court decisions are rarely unanimous, and Supreme Court Justices probably qualify as experts in the law, right? So experts routinely disagree. They can’t all be right.
Bottom line: only intellectual bonsai outsource their thinking to experts. Get opinions from them, by all means. Weigh them, consider them, absolutely. Adopt them as Holy Writ — no.
Uh…why is that? Please point me to the part of the Constitution that says this.
Great news for ex-cons.
The “we didn’t choose to be that way” bleat is especially feeble. Did Jeffrey Dahmer choose to be that way? How about John Wayne Gacy? Ed Gein? When you get right down to it, you can argue about the volitional component of anyone’s behavior. Dorm room philosophers and all humanities types hold forth, implicitly or explicitly, on this free will/determinism chestnut ad nauseam. Do golden retrievers choose to retrieve and love the water, or is it bred in them? If that behavior is bred in them — and it clearly is — then arguably anyone’s behavior can be ascribed at least in part to heredity. Should we make allowances across the board?
The point is that the question of origin is not really productive, because it is unknown and generally unknowable. This is a case where the impact is dispositive. The worthies listed above met their fates because their behavior was unacceptable. What precisely motivated them to indulge in their behavior is at best a historical footnote.
In short, it’s not all about you. This has been on my mind now for a while, as a sort of mortification of the flesh type consideration, i.e., subordinating baser, physiological functions to cognitive control. As a straight-up atheist, although raised as a Catholic, I consider religion generally as a prescription on how to live, overlain with a mystical backdrop. Viewing oneself as the center of the universe, coordinates (0,0,0), is not a recipe for happiness. Stepping up for others, putting them first, is.
In the marital context, it’s not about you. It’s about us, your spouse, and your kids, in that order, then maybe you (right after your dogs, of course!). In the economic context, the question isn’t whether others have more, but whether you have enough. Do you have the food, shelter, clothing you need (not what you want — what you need, at a physiological level). Yes? Then be happy with that. It’s enough. With that, a loving spouse, good kids, and good friends, you are rich indeed.
ELC: It is indeed a slippery slope. But (at least so far) most social science research comes down on the side of sexual relations between adults and children as harming children. Plus, children are (at least so far) considered to be under the age of consent.
But that doesn’t mean there aren’t people intent on working towards the end of normalizing such relations and ultimately legalizing them. I just think it would be the last barrier to go—with polygamy and incest earlier on the list.
Oblio: it’s not an argument about love. The argument goes this way: if one accepts that being gay is not a choice, then the right to marry whom one loves is a legal right that is discriminatory to not allow to gays. That’s the equal protection part of the argument. Marriage to the object of your love is a legally regulated process that the pro-same-sex-marriage group argues is a right that you cannot deny solely on the basis of sexual orientation.
Would this be the same social science research that listed homosexuality a mental disorder in the DSM until 1973? Social science is called “so-called science” by real scientists. There’s a reason for that. A damned good reason.
Changing that is, pardon the expression, child’s play.
Here’s how they’ll do it. The pervs and the Reds will parade a few precocious, articulate kids in front of TV cameras and have them recite prepared manifestoes (kind of like Barry in that respect) on how the current legal standard represses their natural humanity, etc. The “activists” will beat the drums on this, while Hollywood will start portraying kids as wise and all-knowing, perfectly able to make weighty decisions, but relegated to subordinate status by a hidebound traditional society. Various putatively scholarly types will point to Europe (where the age of consent is generally around 14), and indicate how backward these Americans are. Of course, by that time, perversion will be not only countenanced, but subtly encouraged because homosexuality will be taught in schools as a “lifestyle choice,” rather like choosing paper or plastic in a grocery store.
This type of marketing campaign is how drugs, divorce, illegitimacy, and assorted antisocial attitudes were mainstreamed. They’ll use it here. It’ll work. Accept it.
Neo, how exactly is this not an argument about love?
Occam’s Beard: because, although I used the word “love” to conform with what you were talking about, love is not the issue, the right to marry is. The word “love” is not necessary to make the point, and it is not the right being ruled on.
For example: Prop 8 did not forbid anyone to love anyone, or take away anyone’s right to love anyone. It forbid gay people from marrying each other, not loving each other or even having sex with each other.
What’s more, people can get married for any reason they want. I wrote, “then the right to marry whom one loves is a legal right….” The word “love,” however, is not a necessary part of that sentence. I could just as easily written “then the right to marry whom one is sexually attracted to is a legal right…” or “the right to marry whom one wishes to for any reason is a legal right…” There are no rules that list the legal reasons anyone (gay or straight) is allowed or not allowed to marry. The rules describe the persons prohibited or not prohibited (by sex or by consanguinity or by age).
Occam’s Beard: I’m not sure why you’re making the point that social science research is very soft and squishy as science; I’m already in agreement with that, as I think I made clear in my post. In the case of children and sex/marriage with adults, however, social science research, traditional morality, and the law all happen to be in agreement with each other—and with me—that allowing marriage or sex between adults and children would be a very bad idea.
At least so far. I’m aware that this could change over time. Plenty else has.
neo,
“People who want to marry their relatives or to have multiple spouses are not that way by biology or birth, but are making choices. “
Playing devils advocate here, are they making a choice? Do we choose who we’ll fall in love with? Can we only romantically love one person? Is monogamy a cultural construct and thus learned behavior?
Must marriage be based solely on romantic love? And if not, then in a plural marriage the spouses might say that they love each other for a variety of valid reasons.
Once same-sex marriage is mandated based upon the equal protection clause, these arguments will be made in defense of plural marriage and by advocates, arguing that banning plural marriage is inherently and arbitrarily discriminatory.
Neo,
“I’m aware that things could change over time.” If you read about Kevin Jennings at Gateway Pundit, you will see that some agents of change are already hard at work.
neo, I understand the equal protection argument, but I would contest the proposition that says that anyone has a fundamental right to marry, as opposed to license to marry under certain and restrictive circumstances. OB and I are arguing that society has purposes in granting that license that have nothing at all to do with love (or religion, for that matter). To argue from the basis of such a “right” is to assume what has never been proved (or accepted), a unconvincing starting point for a logical argument: begging the question, indeed.
You say you use the word “love” for convenience. If you tried to make the same argument without using it, you would find that that it is almost impossible, and furthermore, you have stripped out all the emotional connotations that justify the proposition to the irrational woolly Left.
This can’t continue. Whatever else it is, this sweeping argument about the US Constitution is going to be seen as renewed declaration of war in the Culture Wars. The nature of the constitutional argument is going to be unacceptable to vast numbers of people who don’t live in San Francisco, in Cambridge, or on the Upper West Side. The very nature of the decision guarantees that this will be fought to the finish. There isn’t any more room for a political settlement and compromise.
Constitutional Law 101: Unless one is a member of a protected group (e.g. blacks or women, but not gays), any equal protection question is decided on whether the state can articulate a rational basis for the law. Rational basis is legal shorthand for “any reason at all.” Judge Walker knows this and ignored decades of precedent to reach a result that he and the people he goes to parties with prefer, the voters be damned. The decision will be overturned.
I see it as a semantic effort, a NewSpeak effort to re-define definitions, guised in legalisms. Marriage, clearly defined and used by most humans for thousands of years, is given a new definition.
The judge’s vote nullifies millions of votes. And so our new dictionary is created.
Clinton was prescient in saying, “It all depends on what the meaning of the word ‘is’ is.”
Sorry, neo, I was unclear. I was disparaging social science research generally, not specifically with respect to pedophilia.
Social science research, traditional morality, and the law do all happen to be in agreement with each other on pedophilia…now. But the first of these will change, guaranteed, and be used to change the last. (Traditional morality, and your good sense, will remain intact!)
Here’s why I say that. Social science generally is heavily Red-infested. Sociology in particular was founded by a French socialist essentially to advance socialism. Social science research is all too often an engine to achieve the same end, so that leftists can brandish some “study” that supports their position, lending an academic and rational patina to what is in actuality just their political opinion.
Cases in point:
Michael Bellesiles writes “Arming America,” which purports to show that guns were not prevalent in early America, undercutting conservatives’ argument, and wins the
LeninBancroft Prize. Later it comes out that he made up half of his “data.” His transgressions were so egregious that Emory University couldn’t stand the stink, investigated, and condemned him. Bellesiles stood by his “work,” and claimed the dog had eaten his notes, but resigned. Better luck next time, comrade.Homosexuals, trying to look more mainstream, produced studies that purported that 10% of the population was homosexual. Nice try, boys. Try 1%.
Feminists, trying to push their “all men are rapists” meme, produced studies that purported to show that 30-40% of women (IIRC) had been raped. Thirty percent??? Should’ve gone with a figure that was more believable, girls.
Feminists, trying to link sports with violence, also produced a study that Super Bowl Sunday was associated with a spike in domestic violence. This has been debunked many times, but still kicks around.
As pointed out above, homosexuals, trying to defend their raising children, produced a study that purportedly showed that sons raised by lesbians turned out just fine. Their source? The self-reports of the lesbians. It is to laugh.
This is why I, sight unseen, disparage social science “studies” supporting leftist positions. Notice that no such “studies” ever undermine leftist positions, as some studies, if they were legitimate, inevitably would? (I’m a physical scientist, and we’re surprised all the time. Are we dumber than social scientists?) Now if the “studies” are merely agitprop, then this makes perfect sense.
Oblio: but I think I just made the same argument without using the word “love.” It can certainly be made, although it’s not as strong an argument emotionally. But it is just as strong legally.
I don’t have a strong opinion against same sex marriage. If I were voting on a referendum, I’m not sure how I’d vote. But that’s irrelevant. I think that banning it—as in Proposition 8—has the weight of tradition and at least some rationality behind it (all that’s necessary, legally), and the will of the people in a state (California, in this case) should be respected. If they want to ban it, they should be able to. If they want to allow it, they should be able to. The court overreached.
Judge Walkers decsion is summed up best here:
We’ll be fighting in the streets
With our children at our feet
And the morals that we worshiped will be gone
And the men who spurred us on
Sit in judgment of our wrongs
They decide and the shotgun sings the song
I’ll tip my hat to the new constitution
Take a bow for the new revolution
Smile and grin at the change all around me
Pick up my guitar and play
Just like yesterday
And I’ll get on my knees and pray
We don’t get fooled again
After a few more decisions like this one the Constitution will be shattered along with 2000 years of Law based on the Judeo-Christian moral code. Has anyone given real thought as to what will fille the vacum?
First, to say this opinion was based on “facts” is really an insult to the intelligence. It is, of course, based entirely on the judge’s feelings.
Second, which part of the 14th amendment does Prop 8 violate? Here is the relevant part:
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Did any citizen of the US ever have the privililege or immunity to marry anyone of the same sex?
Was Prop 8 not passed with all due process of law?
Does any person in California, male or female, heterosexual or gay, monagomous or polygamous, have the right to marry anyone but a single member of the opposite sex, of majority age, mentally competant, and not incestuous? So who is beiong treated unequally?
So could someone tell me how the 14th Amendment is implicated by Prop 8?
Third, what is truly sad about all this is that we have totally abandoned the 10th Amendment, and with it any limit on the federal courts’ power. This means there is no more democracy, and that a single man, Justice Anthony Kennedy, will decide this matter of social policy which constitutionally was left “to the states, and the people.”
Richard Saunders: As far as the use of the word “facts” here goes—the judge listed the findings of fact in his written opinion. Those are the “facts” as a matter of law—but they were not really facts at all, they were mainly the results of some social science research studies, plus his own reasoning as to what they meant. The judge did it that way because appeals courts usually do not challenge the facts as decided by the judge in the lower court, and so he was trying to finesse things. It is unclear whether the higher court will consider these findings “facts” just because Judge Walker has labeled them as such.
See this.
@ neo-neocom 1:20 a.m. “Prop 8…. forbid gay people from marrying each other, not loving each other or even having sex with each other.”
I do not believe that is a correct statement of what Proposition 8 did. The substantive portion of the proposition is this: “Only marriage between a man and a woman is valid or recognized in California.”
What that does is preclude activists of all kinds from redefining marriage to be something other than the union of one man and one woman.
At the very least, your statement that it forbade homosexuals from marrying each other begs the question, that persons of the same sex are actually capable of marrying each other in any sense in which marriage has been understood for thousands of years.
ELC: Prop 8 did not mention gay people and marriage, of course. And yes indeed, the statement it made was to define marriage in the traditional way. But the reason it was passed was as a backlash to attempts to make gay marriage legal, and its goal was to ban gay marriage in the state (which it did), not merely as some sort of pep talk for heterosexual marriage of the traditional sort.
My statement that you quoted was an attempt to make a distinction between Prop 8’s effect on gay marriage as opposed to other aspects of gay relationships, such as love and/or sex. Prop 8 only affects marriage.
Richard Saunders>
The logic in the ruling in regards to the 14th amendment essentially has two parts
Part 1 (due process):
1. Marriage is a fundamental right. (by court history)
2. Legislation depriving a person of a fundamental right requires the law to pass “strict scrutiny” in order for the persons deprived of said right to have been afforded “due process.” (14th amendment court history)
3. The state failed to prove that the state had a compelling government interest to restrict marriages to heterosexual couples.
Part 2 (equal protection):
1. Marriage is a fundamental right. (court history)
2. Defining marriage to be between one man and one woman discriminates based on gender. (e.g., Bob is only not allowed to marry Tom because Tom is male).
3. Gender is a “suspect classification”, and the law must pass “strict scrutiny” to show the state has a damn good reason to provide unequal protection under its laws. (court history) (e.g., Tom isn’t protected by spousal privilege when asked to testify against Bob).
4. The state failed to prove that the state had a compelling government interest to restrict protections afforded by marital status based on gender.
As an aside the judge said that, even though it was unnecessary, the law failed to pass the rational basis test (an easier test to pass, usually reserved for questions on less fundamental rights).
My understanding is that gay-rights activists DO NOT WANT AND WILL NOT ACCEPT a legal recognition of “couple-ness” unless it is called “marriage” –no more, no less. If it’s called anything else, like “Civil Union” or “Legal Covenant Relationship”, even though it would guarantee exactly the same legal rights, responsibilities, and benefits as marriage, it’s not sufficient for them.
One must ask — WHY? The activists’ argument for “marriage” is that it will allow them to file joint tax returns, make medical choices for each other, inherit from each other, adopt kids together, have social recognition of their commitment, etc. If a new terminology was created that offers EXACTLY THE SAME benefits but has a different name (to maintain the existing cultural understanding of “marriage” *), you’d think that would be a perfect solution. But if any new term is rejected, perhaps it’s not the “legal recognition” that matters most. Maybe, as suggested on other blogs I’ve read, the target is really Established Religion. If ‘The State’ authorizes marriage between same-sex couples (and -just saying- once the definition has been loosened to “any two people who want legal recognition as a couple”, why shouldn’t threesomes ask for and be granted the same “right” to marry?), and if (for instance) the Catholic Church refuses to perform such a marriage because it’s forbidden under their theology, will the Church be charged with denying that couple their “Civil Rights”? To force them to follow “government doctrine” instead of church doctrine, would they be threatened with losing their tax-exempt status? Would some gay couple sue them for discrimination, and would they have to pay punitive damages for “pain and suffering”, over and over again for each new case, until the Church couldn’t afford to keep its doors open? (There are those who say the Uber-Left wants to remove God from the public mind and replace him with the All-Powerful State as the Source of All Good Things.)
As jaded as I’ve become under this administration, that’s starting to sound plausible…
Additionally, there’s some element of “words mean what I WANT them to mean” at play here (see “Alice in Wonderland”); if government –or even one lone judge– can redefine a particular word that used to have one specific, well-understood meaning, and change that meaning into something else entirely –just by fiat– then our laws can be changed or rendered ineffective just by changing the definitions of once well-understood concepts. What if “homicide” becomes “the killing of a member of a protected minority group”? Then the ethnic majority becomes fair game for target practice, since the law regarding homicide applies only to “minority” victims. I think this “redefinition of commonly-understood terms” is a road we DON’T want to go down….
(*) the term “marriage” would retain its original meaning: a “husband” {one man} and a “wife” {one woman} binding themselves to each other by oaths taken “before God and man”, and by their vows creating a new household/ family/ economic/ social unit which is universally recognized as the cornerstone of society.
rickl said August 5th, 2010 at 6:30 pm
” … Rush said today that this is only tangentially about gay marriage. It’s really about a minority dictating to the majority, and Federal judges flouting the clearly expressed will of the voters of California.”
==========
Also — it’s about the Liberal/ Progressive/ Commie-Activist insistence on the meme that the White Capitalist Judeo-Christian West is ALWAYS the oppressor in ANY conflict with ANY ethnic, tribal, social, religious, or other minority group.
Just remember those three words: ALWAYS THE OPPRESSOR. That’s the gist of their worldview. That’s the fulcrum they use to break down a functioning society into a group of competing grievance groups. Also understand that the social breakdown, the resentment and class warfare that they’re engineering with the intent to implode society and usher in “The Revolution”, requires the development of a monolithic State with powerful bureaucracies — and the State will be presented as the only power strong enough to crush the conspiracies of The Oppressors in order to liberate The Oppressed.
So, put briefly, the Lefties are using the gay-rights agenda to accomplish two purposes: (1) to create another splinter group that feels itself “deprived of rights and respect” by the oppressive mainstream society (and thus ratchet down social cohesion by another little notch), and (2) to create another “right” or “entitlement” that ONLY GOVERNMENT can guarantee and enforce (and this enlarges the scope and authority of the State just a little more).
In the enthusiasm for gay marriage, there may be some rich gays who find that their wealth has been diminished by “common law marriage” to someone they may have forgotten.
“Hello? Remember me from that vacation in the Bahamas last year. You said we were married? Now we are. I want a divorce. Meet my attorney. I want half of everything.”
nyght said August 5th, 2010 at 7:33 pm
” … So much of his decision is built on the idea that the symbolism is different, and that gay couples have the right to the symbol/meaning of the word “marriage”, which I wholeheartedly disagree with. … ”
==========================
Absolutely agreed. Because what the judge is doing here is taking a word which has a concrete and universally-understood meaning, and assigning a new meaning to that word. All by himself.
Does this mean that some other judge will feel free to change the meaning of the word “citizen”? What about “self-defense”? What if one of these activist judges jumps up and decides that “legally” means not only “in accordance with established law”, but now includes “because I say so, since x-y-z outcome is obviously more desirable than the results would be if we remain bound by established law.”
I thought I understood that legal decision-making relies heavily upon precedent. Marriage has been understood as one-man/one-woman for the preponderance of European and American history. Why does this one judge get to establish a NEW precedent? Not only the precedent that the State can now override social/ religious/ historic norms regarding family — and thus change the essential nature of society’s foundational unit, but also the precedent of creating new meanings to apply to long-established, well-understood words.
I shudder to think of the “brave new world” we’re going to wind up with if the meaning of words is constantly shifting, depending on who says them, and to whom, and why, and with reference to what situation.
Ninjafetus: I’m well aware of the court’s history with respect to the addition, or perhaps I should say incorporation, of “substantive” due process into the 14th amendment. Unfortunately, substantive due process, with its attendant “strict scrutiny” and “rational relationship” tests, is merely a mask behind which a judge interposes his or her opinion into the legislative process. Since anything subject to the rational relationship test always is constitutional (notwithstanding the judge’s dictum in this case) and everything subject to strict scrutiny is not, it’s much more disinterested-sounding for a judge to say “this statute is subject to the rational relationship test,” or this statute is subject to strict scrutiny,” than it is to say “I like this one,” or “I don’t like that one.”
rich: I’m not saying I necessarily agree with the logic, I was just answering your stated question! 🙂
Besides, agreeing with the logic or not, the conclusion can only be reached if you agree with the premises. The defense didn’t touch this. I wonder if they will next time.