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Author Topic: Prop 8 Ruled Unconstitutional  (Read 10683 times)

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Devery

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Prop 8 Ruled Unconstitutional
« on: August 04, 2010, 05:00:47 PM »

Hot off the presses!   A HUGE WIN, for now anyway.


BREAKING: Prop 8 ruled unconstitutional
August 4, 2010

by Adam Bink

I just finished reading the meat of the decision. Chief Judge Vaughn Walker has ruled Prop 8 is unconstitutional on both Equal Protection and Due Process grounds. Huge win. The decision is likely to be appealed to the Ninth Circuit Court of Appeals. Developing…

UPDATE (1:43 PST): Here’s the conclusion from the decision.

CONCLUSION
Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples.  Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis,the court concludes that Proposition 8 is unconstitutional.

REMEDIES
Plaintiffs have demonstrated by overwhelming evidence that Proposition 8 violates their due process and equal protection rights and that they will continue to suffer these constitutional violations until state officials cease enforcement of Proposition 8.  California is able to issue marriage licenses to same-sex couples, as it has already issued 18,000 marriage licenses to same-sex couples and has not suffered any demonstrated harm as a result, see FF 64-66; moreover, California officials have chosen not to defend Proposition 8 in these proceedings.

Because Proposition 8 is unconstitutional under both the Due Process and Equal Protection Clauses, the court orders entry of judgment permanently enjoining its enforcement; prohibiting the official defendants from applying or enforcing Proposition 8 and directing the official defendants that all persons under their control or supervision shall not apply or enforce Proposition 8. The clerk is DIRECTED to enter judgment without bond in favor  of plaintiffs and plaintiff-intervenors and against defendants anddefendant-intervenors pursuant to FRCP 58.

IT IS SO ORDERED.

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Re: Prop * Ruled Unconstitutional
« Reply #1 on: August 04, 2010, 05:04:29 PM »

About bloody time..... why this is even an issue in a so called civilised country is beyond me
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Re: Prop 8 Ruled Unconstitutional
« Reply #2 on: August 04, 2010, 05:20:50 PM »

civilization is patchy here

i'm sure the motions for a temporary injunction are ready, if not already filed with the ninth circuit.  the ninth circuit is unlikley to overturn it, though they might issue the injunction

a good chance this one will go all the way to the supreme court.
they might overturn it. 
that will be the most interesting set of decisions to read.
the supreme court might combine it with the DOMA overturn appeal from NY

this is only a precedent in california right now, and unappealed at that
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Re: Prop 8 Ruled Unconstitutional
« Reply #3 on: August 04, 2010, 05:21:30 PM »

 :wav:

 :blob3: :blob7: :blob5: :blob6: :blob10: :blob9:
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Re: Prop 8 Ruled Unconstitutional
« Reply #4 on: August 04, 2010, 05:34:54 PM »

:wav:

 :blob3: :blob7: :blob5: :blob6: :blob10: :blob9:

you've found the ideal jury for this case!
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Re: Prop 8 Ruled Unconstitutional
« Reply #5 on: August 04, 2010, 05:52:59 PM »

:wav:

 :blob3: :blob7: :blob5: :blob6: :blob10: :blob9:

you've found the ideal jury for this case!

Thanks, Len. Let's hope.
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Re: Prop 8 Ruled Unconstitutional
« Reply #6 on: August 04, 2010, 08:11:39 PM »

*in my best Michael-Ironside-in-Total-Recall-voice* it's about goddamn time.

#@!

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Re: Prop 8 Ruled Unconstitutional
« Reply #7 on: August 04, 2010, 08:15:55 PM »


I've skimmed the opinion (138 pages); the first 109 pages contain the court's factual findings which will be important on appeal as the Supreme Court, regardless of its opinion on the law, is required to give great deference to a court's findings of fact, especially when those findings are based on the credibility of witness testimony.  Judge Walker found that the “strict scrutiny” test applies to the Due Process analysis.  This the most stringent of the tests that can be used to determine if a law satisfies the Due Process Clause.  To satisfy “strict scrutiny,” the State must show that the law is “narrowly tailored to a compelling state interest.”  On the other hand, the most relaxed standard–and the one that the anti-equality crowd argued should apply–is “rational basis review.”  Under “rational basis review,” the Court will uphold a discriminatory law if the State has any rational reason for having the law.  Judge Walker found that the “strict scrutiny” test applies instead of the “rational basis” test because marriage is a fundamental right.  When the State takes away a fundamental right, it must have a compelling reason to do so.  But going even further, Judge Walker found that even if the Prop 8 proponents were right and the “rational basis” test should apply, Prop 8 still does not pass muster.

The judge found that the law did not satisfy the Equal Protection Clause under the a rational basis review, although he said he didn't need to state which of the three tests applied, as it didn't even pass the most relaxed standard.

More info from a blog I read on the opinion:



Judge Walker goes on to show in detail why each of the arguments advanced by the Intervenors fails to provide a rational basis for Proposition 8:

•Intervenors argue that maintaining the traditional notions of marriage being between a man and a woman is a rational reason for Prop 8.  Judge Walker responds by citing a 1970 U.S. Supreme Court case and says: “Tradition alone, however, cannot form a rational basis for a law.”  He went on to say:
Instead, the evidence shows that the tradition of gender restrictions arose when spouses were legally required to adhere to specific gender roles. California has eliminated all legally mandated gender roles except the requirement that a marriage consist of one man and one woman. Proposition 8 thus enshrines in the California Constitution a gender restriction that the evidence shows to be nothing more than an artifact of a foregone notion that men and women fulfill different roles in civic life.

•Intervenors also argued that because same-sex marriage is such a sweeping social change, California has a rational basis to implement this change incrementally.  In other words, it should be allowed to first offer domestic partnerships before marriage.  Judge Walker rejected this argument, finding that “The process of allowing same-sex couples to marry is straightforward, and no evidence suggests that the state needs any significant lead time to ntegrate same-sex couples into marriage.
•Losing touch with reality, Intervenors’ next absurd argument is that the state has a rational basis to reserve marriage for opposite-sex couples because they’re better parents and the state should promote procreation within an opposite-sex marriage.  Judge Walker easily dismisses this drivel by finding that the evidence proves: “(1) same-sex parents and opposite-sex parents are of equal quality, and (2) Proposition 8 does not make it more likely that opposite-sex couples will marry and raise offspring biologically related to both parents.
•Going further afield into crazyland, Intervenors next argue that the state has a rational basis in protecting bigots rights to take away rights from people they don’t like.  Holding in his laughter, Walker responds: “Proposition 8 is not rationally related to an interest in protecting the rights of those opposed to same-sex couples because, as a matter of law, Proposition 8 does not affect the rights of those opposed to homosexuality or to marriage for couples of the same sex.”  Can we get a Hallelujah!
•Intervenors next argue that there’s a rational basis in calling different things by different names.  They argue that it would be an administrative burden to have the same name for both opposite and same-sex unions.  And imagine the chaos that would ensue if someone said that they were married and you later discovered they were a GAY!  Judge Walker responds: “Proposition 8 actually creates an administrative burden on California because California must maintain a parallel institution for same-sex couples to provide the equivalent rights and benefits afforded to married couples.”
After rejecting each of the Intervenor’s arguments as to why a rational basis exists for Prop 8, Judge Walker went on to find that in the absence of a rational basis, it is safe to assume that Prop 8 exists because some people just don’t like gays and lesbians:

In the absence of a rational basis, what remains of proponents’ case is an inference, amply supported by evidence in the record, that Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples. Whether that belief is based on moral disapproval of homosexuality, animus towards gays and lesbians or simply a belief hat a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is ot a proper basis on which to legislate.

One quote from the decision that really sums up the feelings of many who believe in equality is:

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)

The long and well-reasoned decision concludes with this short and sweet determination that the couples who challenged Proposition 8 are correct:

REMEDIES

Plaintiffs have demonstrated by overwhelming evidence that Proposition 8 violates their due process and equal protection rights and that they will continue to suffer these constitutional violations until state officials cease enforcement of Proposition 8. California is able to issue marriage licenses to same-sex couples, as it has already issued 18,000 marriage licenses to same-sex couples and has not suffered any demonstrated harm as a result,see FF 64-66; moreover, California officials have chosen not to defend Proposition 8 in these proceedings.

Because Proposition 8 is unconstitutional under both the Due Process and Equal Protection Clauses, the court orders entry of judgment permanently enjoining its enforcement; prohibiting the official defendants from applying or enforcing Proposition 8 and directing the official defendants that all persons under their control or supervision shall not apply or enforce Proposition 8.

The clerk is DIRECTED to enter judgment without bond in favor of plaintiffs and plaintiff-intervenors and against defendants and defendant-intervenors pursuant to FRCP 58.

IT IS SO ORDERED.”

The elephant in the room is now the question of a stay.  Yesterday, in anticipation of losing, the anti-equality Intervenors filed a motion asking the Court to stay its decision pending appeal.  In other words, they argue that since an appeal is inevitable, the Judge should not enforce his ruling until after the inevitable appeal is exhausted.  Judge Walker has not yet ruled on that motion.  Even if Judge Walker denies the stay, the Intervenors will ask the Ninth Circuit Court of Appeal to issue an immediate stay of the decision.  In a case like this, a stay is very likely.  It remains to be seen whether Judge Walker will grant the stay or if that issue will be decided by the Ninth Circuit.

*UPDATE* CNN is reporting that Judge Walker issued a stay.  But there is no Stay Order in the Court’s docket as of this writing, only the motion by the Intervenors.  I suspect CNN may have gotten ahead of itself and is publishing unconfirmed rumors.  That being said, I think a stay is likely at some point (probably by the Ninth Circuit.)

*UPDATE* The Court just entered an Order shortening time for Intervenors’ motion to stay to be heard.  Plaintiffs’ must file their opposition to the Intervenor’s motion to stay Friday, August 6th.  The Court will decide the motion on the papers without a hearing.  I suspect an order will issue very shortly after the opposition is filed, probably by Monday or Tuesday.  In the interim (i.e. in the next few days until the Court rules on the Motion to Stay), the entry of the Judgment is temporarily stayed.






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Re: Prop 8 Ruled Unconstitutional
« Reply #8 on: August 04, 2010, 09:45:54 PM »

stays for both appeals are very likely
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Re: Prop 8 Ruled Unconstitutional
« Reply #9 on: August 04, 2010, 10:50:03 PM »

I'm very happy that it was ruled unconstitutional, and I hope it remains that way.
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Re: Prop 8 Ruled Unconstitutional
« Reply #10 on: August 05, 2010, 01:44:19 AM »

Unfortunately kids, I can already tell you how this book ends....

9th Circuit will uphold the current ruling, but unless one of the GOP, uh, I mean "Conservative-leaning"
justices decides to retire in the meantime, SCOTUS will rule 5-4 that the fine citizens of the State of
California made their collective will clear and they, the court, aren't about to impose any sort of Activist
Judicial Philosophy (especially not a Liberal-leaning one) on them. 

The evil Prop 8 Amendment will then be reinstated.  :angry7:

Of course, it's possible that someone will put a Prop-to-repeal-Prop-8 on some future ballot,
and without all the Mormon money from Utah, those fine Californians might arrive at a different
conclusion...  It seems amending the Constitution of California is a bit easier than filling out a
typical merchandise mail-in-rebate form...
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Re: Prop * Ruled Unconstitutional
« Reply #11 on: August 05, 2010, 02:24:17 AM »

About bloody time..... why this is even an issue in a so called civilised country is beyond me
honestly, why the lot of us in this civilised country havent picked up guns, shovels, and pitchforks and gone screaming into the streets for any number of reasons is beyond me.
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Re: Prop 8 Ruled Unconstitutional
« Reply #12 on: August 05, 2010, 04:11:38 AM »

Prop 8 fail onto Plan 9


also this is just win - neverending loop of Amanda getting hammered.

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Re: Prop 8 Ruled Unconstitutional
« Reply #13 on: August 05, 2010, 07:09:16 AM »

Unfortunately kids, I can already tell you how this book ends....

9th Circuit will uphold the current ruling, but unless one of the GOP, uh, I mean "Conservative-leaning"
justices decides to retire in the meantime, SCOTUS will rule 5-4 that the fine citizens of the State of
California made their collective will clear and they, the court, aren't about to impose any sort of Activist
Judicial Philosophy (especially not a Liberal-leaning one) on them. 

The evil Prop 8 Amendment will then be reinstated.  :angry7:

Of course, it's possible that someone will put a Prop-to-repeal-Prop-8 on some future ballot,
and without all the Mormon money from Utah, those fine Californians might arrive at a different
conclusion...  It seems amending the Constitution of California is a bit easier than filling out a
typical merchandise mail-in-rebate form...

CeeGBee  could well be right.

Due to the stays, prop 8 could stay in effect indefinitely.

There may be two appeals before the ninth circuit,
One by a three judge panel, and one by all the judges.
The senior judge might decide to have the full circuit hear the first appeal, but unlikely, for the same reason the stays will be issued, judical restraint.

I hope prop 8 does get overturned by the voters.
But if this happens, the courts are likley to just throw the case out.
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Re: Prop 8 Ruled Unconstitutional
« Reply #14 on: August 05, 2010, 07:34:42 AM »

The very smart and legally talented team that brought this law suit is taking at least two gambles

1) that the Supreme Court will agree prop 8 is unconstitutional.  From the stated legal views of the justices, this should be a 9-0, but the hearts of 5 of them are against same-sex marriage (what CeeGBee said).

If it's found constitutional, its unlikley to see judicial review again for a generation.

2) that if the Supreme Court finds prop 8 unconsitutional, that an amendment to the US Constitution won't be proposed and pushed to prohibit same-sex marriage, and passed.  The right is far better at this than the left.  Including lot's of money from Mormons and others.



I hope we win both gambles.
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Re: Prop 8 Ruled Unconstitutional
« Reply #15 on: August 05, 2010, 11:02:08 AM »

there were 80 findings of fact (taking up 53 pages of the 138 or so) in this decision, and they're going to swing a lot of weight. If Spaz Roberts and his 4 Horsemen throw all that out just to vote their ideology, their impeachment should immediately follow.

#@!

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Re: Prop 8 Ruled Unconstitutional
« Reply #16 on: August 05, 2010, 11:31:48 AM »

Wouldn't it be something if Clarence Thomas took this opportunity to break out from the pack and vote to affirm the ruling.


I really like how the judge found that the fact a majority of California's citizens voted for Prop 8 was "irrelevant" to the case.  He found that gays and lesbians are a "suspect class" entitled to equal protection and due process under a 'strict scrutiny" analysis.  Even if the Supreme Couirt declines to find them to be a suspect class and thereby decline to use the strict constitutional test, there is more than enough evidence to strike Prop 8 down using the rational basis test.  Let's see, the state's interest was distilled down to (1) tradition and (2) moral repugnancy towards same-same marriage.  It is obvious from the testimony that the basis used to discriminate against same-sex couples was morality-based, which could pass muster if there were a corresponding secular interest that is at least rationally-based.  The Prop 8 supporters couldn't come up with that kind of reason during the trial and for good reason; because there ain't one!

Now, I am well aware of the Rehnquistian tendencies of the conservative majority of the Supreme Court and fully expect to see that here.  That is:  Arrive at your conclusion first and then twist legal logic and precedent in creative ways to support it.  But even these guys are not immune to the trends of the times and the solid factual and constitutional underpinnings of this decision.  I am holding out more than a faint hope that the time is ripe for another landmark decision upholding individual rights.  I would be overjoyed if the Court agreed with the trial court that the right of same-sex couples to marry is a fundamental right.  Even if it upholds the ruling, I strongly suspect they will not go that far.  But that would be okay, too, provided they reach the right result.
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Re: Prop 8 Ruled Unconstitutional
« Reply #17 on: August 05, 2010, 01:28:09 PM »

^  The legal reasoning is entirely sound, but alas, I think Judicial Activism on the part of
the "Conservative" justices is inevitable.  (...and since they'll have solid cover behind "the
expressed will of the people" - this was passed as a referendum, remember - impeachment
doesn't even rise to the level of 'fantasy'.)
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Re: Prop 8 Ruled Unconstitutional
« Reply #18 on: August 05, 2010, 01:39:05 PM »

It's a great day to be homogenized.

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Re: Prop 8 Ruled Unconstitutional
« Reply #19 on: August 05, 2010, 02:35:16 PM »

^  The legal reasoning is entirely sound, but alas, I think Judicial Activism on the part of
the "Conservative" justices is inevitable.  (...and since they'll have solid cover behind "the
expressed will of the people" - this was passed as a referendum, remember - impeachment
doesn't even rise to the level of 'fantasy'.)

Judge Walker pretty much smashed the "expressed will of the people" canard repeatedly in his decision. To go against it - not to mention a 9th Circuit Court ruling on top of it - well, we who still respect the rule of law had better shut this country down in protest if Spaz & Co. show that little respect for it, or we'll deserve everything that follows.

#@!

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Re: Prop 8 Ruled Unconstitutional
« Reply #20 on: August 05, 2010, 08:29:37 PM »

^  The legal reasoning is entirely sound, but alas, I think Judicial Activism on the part of
the "Conservative" justices is inevitable.  (...and since they'll have solid cover behind "the
expressed will of the people" - this was passed as a referendum, remember - impeachment
doesn't even rise to the level of 'fantasy'.)

Judge Walker pretty much smashed the "expressed will of the people" canard repeatedly in his decision. To go against it - not to mention a 9th Circuit Court ruling on top of it - well, we who still respect the rule of law had better shut this country down in protest if Spaz & Co. show that little respect for it, or we'll deserve everything that follows.

#@!
Five Republican Supreme Court Justices trumps one District Court judge, as well as the
entire 9th Circuit. They'll say "the people voted, and no Activist Liberal judge is going
to impose his perverted lifestyle on them, no matter how he tries to hide behind legal
wordplay"... Once they do that, there's no way Congressional Dems have the votes to
do anything about it. 

Best hope for a long-term fix is for a voter-initiated 'counter-amendment'.

(Granted, the 'legal scholar' I heard on the radio today seemed to feel that there is some
remote chance that Justice Kennedy can be swayed to the pro-gay side of this issue, and
that Judge Walker had specifically designed his ruling to appeal to Kennedy's judicial philosophy...
So maybe I'm being too pessimistic [or the NPR 'scholar' is dreaming, which do you think?])
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Re: Prop 8 Ruled Unconstitutional
« Reply #21 on: August 05, 2010, 10:00:29 PM »

^  The legal reasoning is entirely sound, but alas, I think Judicial Activism on the part of
the "Conservative" justices is inevitable.  (...and since they'll have solid cover behind "the
expressed will of the people" - this was passed as a referendum, remember - impeachment
doesn't even rise to the level of 'fantasy'.)

Judge Walker pretty much smashed the "expressed will of the people" canard repeatedly in his decision. To go against it - not to mention a 9th Circuit Court ruling on top of it - well, we who still respect the rule of law had better shut this country down in protest if Spaz & Co. show that little respect for it, or we'll deserve everything that follows.

#@!
Five Republican Supreme Court Justices trumps one District Court judge, as well as the
entire 9th Circuit. They'll say "the people voted, and no Activist Liberal judge is going
to impose his perverted lifestyle on them, no matter how he tries to hide behind legal
wordplay"... Once they do that, there's no way Congressional Dems have the votes to
do anything about it. 

Best hope for a long-term fix is for a voter-initiated 'counter-amendment'.

(Granted, the 'legal scholar' I heard on the radio today seemed to feel that there is some
remote chance that Justice Kennedy can be swayed to the pro-gay side of this issue, and
that Judge Walker had specifically designed his ruling to appeal to Kennedy's judicial philosophy...
So maybe I'm being too pessimistic [or the NPR 'scholar' is dreaming, which do you think?])

time will tell if you're too pessimistic or not

the longer term fix is to keep electing democratic presidents,
continuously, so we appoint rational supreme court judges,
and get a majority of reasonable judges back

the christian right and conservatives have worked hard since the'60s
to control the supreme court.  the democrats need to work even harder to get
control back
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Re: Prop 8 Ruled Unconstitutional
« Reply #22 on: August 05, 2010, 10:58:53 PM »

Call me over-idealistic, but I'd prefer a Supreme Court free of ideologues,
no matter what 'side'.
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Re: Prop 8 Ruled Unconstitutional
« Reply #23 on: August 06, 2010, 01:46:30 AM »

^  The legal reasoning is entirely sound, but alas, I think Judicial Activism on the part of
the "Conservative" justices is inevitable.  (...and since they'll have solid cover behind "the
expressed will of the people" - this was passed as a referendum, remember - impeachment
doesn't even rise to the level of 'fantasy'.)

Judge Walker pretty much smashed the "expressed will of the people" canard repeatedly in his decision. To go against it - not to mention a 9th Circuit Court ruling on top of it - well, we who still respect the rule of law had better shut this country down in protest if Spaz & Co. show that little respect for it, or we'll deserve everything that follows.

#@!
Five Republican Supreme Court Justices trumps one District Court judge, as well as the
entire 9th Circuit. They'll say "the people voted, and no Activist Liberal judge is going
to impose his perverted lifestyle on them, no matter how he tries to hide behind legal
wordplay"... Once they do that, there's no way Congressional Dems have the votes to
do anything about it. 

Best hope for a long-term fix is for a voter-initiated 'counter-amendment'.

(Granted, the 'legal scholar' I heard on the radio today seemed to feel that there is some
remote chance that Justice Kennedy can be swayed to the pro-gay side of this issue, and
that Judge Walker had specifically designed his ruling to appeal to Kennedy's judicial philosophy...
So maybe I'm being too pessimistic [or the NPR 'scholar' is dreaming, which do you think?])

time will tell if you're too pessimistic or not

the longer term fix is to keep electing democratic presidents,
continuously, so we appoint rational supreme court judges,
and get a majority of reasonable judges back

the christian right and conservatives have worked hard since the'60s
to control the supreme court.  the democrats need to work even harder to get
control back

Len, you should know by now that sadly the democrats they......well have no spine.  Bush could put any qualified nominee he wanted (Harriet Miers being a joke to both sides of the aisle) but when Obama steps up to the plate he boasts about how moderate his nominees are.  But I must say Kagan does seem like a good choice because she has shown a history of being able to reason with the other side and find common ground.  The issue is that only more liberal justices have retired while Obama has been president and right now we have a supreme court who ruled that money = free speech and a corporation is equal to a person so thus say Exxon could and probably will flood our airwaves with commercials come election time.
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Re: Prop 8 Ruled Unconstitutional
« Reply #24 on: August 06, 2010, 01:51:47 AM »

To be fair to the current crop of Right-Wing ideologues on the Court, the
insane notion that Corporations enjoy many of the same rights as human
persons is a fairly old decision.  The Bushies' expansion of those rights to
include unrestricted political speech (i.e. financing) is the new wrinkle.
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Re: Prop 8 Ruled Unconstitutional
« Reply #25 on: August 12, 2010, 03:54:54 PM »

the ban's lifted; marriages can take place again beginning August 18.

 :occasion14:

#@!

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Re: Prop 8 Ruled Unconstitutional
« Reply #26 on: August 15, 2010, 02:51:52 PM »


Ted Olson interview by Chris Wallace of Fox News.  For those who don't know, he and David Bois were the attorneys for plaintiffs in the Prop 8 trial.  Yes, the same attorneys who squared off against each other in Gore v Bush 10 years ago.

<a href="http://www.youtube.com/v/EJwSprkiInE" target="_blank" class="new_win">http://www.youtube.com/v/EJwSprkiInE</a>
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Re: Prop 8 Ruled Unconstitutional
« Reply #27 on: August 15, 2010, 03:18:01 PM »

Ted Olson interview by Chris Wallace of Fox News.  For those who don't know, he and David Bois were the attorneys for plaintiffs in the Prop 8 trial.  Yes, the same attorneys who squared off against each other in Gore v Bush 10 years ago.

<a href="http://www.youtube.com/v/EJwSprkiInE" target="_blank" class="new_win">http://www.youtube.com/v/EJwSprkiInE</a>
ooooh the other day i saw malabimba the malicious whore! (i think you had shown me the poster, right?)
it was a bit trashy, a porno horror that wasn't scary at all, but that dealt somehow indirectly with serious themes such as ecclesiastic celibacy being against nature and so on.
some parts were just hilarious, not too bad afterall.
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Re: Prop 8 Ruled Unconstitutional
« Reply #28 on: August 15, 2010, 09:59:14 PM »

Call me over-idealistic, but I'd prefer a Supreme Court free of ideologues,
no matter what 'side'.

BWHAHAHAHAHA!

It's not just that politics will not stop being political it is that there is no such thing as an objective way to judge.  ANY view of politics is going to be ideological.

Something is objective if and only if it is falsifiable. Meaning there must be a theoretical demonstration that would refute it. For example, an unsolved mathematical problem called the Goldbach conjecture states that every even integer greater than 2 is the sum of two primes. This is falsifiable because all you have to do is find an even integer greater than two that can not be described as the sum of two primes (computer software has been used to confirm that it works up to absurdly large numbers).

So many ethical philosophers and legal scholars fool themselves into thinking that there can be some sort of scientific approach to what really is no more objective than fashion design.

For example, I will now state that the commerce clause of the Constitution gives police the right to punch babies because they represent a lot of commerce. I challenge anyone to come up with a fully consistent and complete argument that this is not the case. Such an argument must not reference concepts simply because they are widely accepted...
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Re: Prop 8 Ruled Unconstitutional
« Reply #29 on: August 16, 2010, 02:03:27 AM »

Call me over-idealistic, but I'd prefer a Supreme Court free of ideologues,
no matter what 'side'.

BWHAHAHAHAHA!

It's not just that politics will not stop being political it is that there is no such thing as an objective way to judge.  ANY view of politics is going to be ideological.

Something is objective if and only if it is falsifiable. Meaning there must be a theoretical demonstration that would refute it. For example, an unsolved mathematical problem called the Goldbach conjecture states that every even integer greater than 2 is the sum of two primes. This is falsifiable because all you have to do is find an even integer greater than two that can not be described as the sum of two primes (computer software has been used to confirm that it works up to absurdly large numbers).

So many ethical philosophers and legal scholars fool themselves into thinking that there can be some sort of scientific approach to what really is no more objective than fashion design.

For example, I will now state that the commerce clause of the Constitution gives police the right to punch babies because they represent a lot of commerce. I challenge anyone to come up with a fully consistent and complete argument that this is not the case. Such an argument must not reference concepts simply because they are widely accepted...
Ideologue (n) - An advocate of a particular ideology, especially an official exponent of that ideology.


The advocates should be the lawyers arguing the case.  If the Justices have already taken
a side before the case is heard, it rather defeats the purpose of the court, doesn't it?

It's inevitable that someone politically-conected to the degree necessary to be appointed
to the Supreme Court will have "leanings", but it's gotten so the Justices appointed by one
side or the other will rule based not on the facts of the case before them, but rather on a
strict basis of the platform of their party.

Pick a "hot-topic", and you can pretty much always predict which side each justice will
side with, regardless of the actual facts of the case.   Some bias is inevitable, but when
the case is decided (almost always 5-4) before it's filed, the system is broken.

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Re: Prop 8 Ruled Unconstitutional
« Reply #30 on: August 16, 2010, 07:33:46 PM »

ooooh the other day i saw malabimba the malicious whore! (i think you had shown me the poster, right?)
it was a bit trashy, a porno horror that wasn't scary at all, but that dealt somehow indirectly with serious themes such as ecclesiastic celibacy being against nature and so on.
some parts were just hilarious, not too bad afterall.

Cool bunnies!


And in the "no big surprise" department,  the 9th U.S. Circuit Court of Appeals issued of stay of Judge Walker's decision to allow same-sex marriages to have begun Wednesday while it considers the constitutionality of the state's gay marriage ban.

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Re: Prop 8 Ruled Unconstitutional
« Reply #31 on: August 17, 2010, 10:02:51 AM »


I'm liking the Court of Appeals.  By granting the stay, it keeps the case away from the Supreme Court, and it can therefore control the case completely during this stage.  (For this reason, it would be foolish for plaintiffs to appeal the stay).  The court has ordered that the case be expedited, culminating in oral arguments scheduled for December 6.  It also directed appellants to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing.  This issue has arisen because neither the Governator nor Attorney General Jerry Brown appealed the decision.  It shows that the court has serious doubts about whether the appellants can even appeal the decision.  In order to have standing (the right to even be in court) the Prop 8 proponents will have to satisfy the three requirements for Article III standing: (1) injury in fact, which means an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical; (2) a causal relationship between the injury and the challenged conduct, which means that the injury fairly can be traced to the challenged action of the defendant, and has not resulted from the independent action of some third party not before the court; and (3) a likelihood that the injury will be redressed by a favorable decision, which means that the prospect of obtaining relief from the injury as a result of a favorable ruling is not too speculative.

Even if the Ninth decides they do have a right to appeal, the proponents will still have to prove that marriage equality causes harm using the “evidence” they presented in the District Court.  Good luck with that!

But - - the panel that hears the case will not be the same panel that granted the stay and issued the above orders; it will be chosen shortly before the hearing.



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Re: Prop 8 Ruled Unconstitutional
« Reply #32 on: August 17, 2010, 01:51:31 PM »

Interesting test of "HOW ideological is the current Supreme Court"....

The current Conservative/Republican majority on the SCOTUS has been among the narrowest,
if not the narrowest ever in their decisions regarding who has standing to bring an action...

With the Governor and A.G. of California uninterested in appealing, there really isn't a pro-Prop8
entity with both the will and standing to appeal....  unless those Right-leaning judges decide,
just this once, to bend the rules, presumably because the underlying issue of restricting gay
rights is more important to their ideological base than any pesky ol' Constitutional questions....
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Re: Prop 8 Ruled Unconstitutional
« Reply #33 on: August 17, 2010, 02:24:19 PM »

But - - the panel that hears the case will not be the same panel that granted the stay and issued the above orders; it will be chosen shortly before the hearing.

the whole ninth circuit is likely to sit 'en banc' to hear the initial appeal, or to either review the three judge's decision, or to rehear the appeal.
i expect that will be expediated as well.

we'll see how long the supreme court takes ...
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Re: Prop 8 Ruled Unconstitutional
« Reply #34 on: August 17, 2010, 02:26:04 PM »

One reason why Prop 8 mustn't be reinstated:
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Re: Prop 8 Ruled Unconstitutional
« Reply #35 on: August 17, 2010, 09:15:15 PM »

Call me over-idealistic, but I'd prefer a Supreme Court free of ideologues,
no matter what 'side'.

BWHAHAHAHAHA!

It's not just that politics will not stop being political it is that there is no such thing as an objective way to judge.  ANY view of politics is going to be ideological.

Something is objective if and only if it is falsifiable. Meaning there must be a theoretical demonstration that would refute it. For example, an unsolved mathematical problem called the Goldbach conjecture states that every even integer greater than 2 is the sum of two primes. This is falsifiable because all you have to do is find an even integer greater than two that can not be described as the sum of two primes (computer software has been used to confirm that it works up to absurdly large numbers).

So many ethical philosophers and legal scholars fool themselves into thinking that there can be some sort of scientific approach to what really is no more objective than fashion design.

For example, I will now state that the commerce clause of the Constitution gives police the right to punch babies because they represent a lot of commerce. I challenge anyone to come up with a fully consistent and complete argument that this is not the case. Such an argument must not reference concepts simply because they are widely accepted...
Ideologue (n) - An advocate of a particular ideology, especially an official exponent of that ideology.


The advocates should be the lawyers arguing the case.  If the Justices have already taken
a side before the case is heard, it rather defeats the purpose of the court, doesn't it?

It's inevitable that someone politically-conected to the degree necessary to be appointed
to the Supreme Court will have "leanings", but it's gotten so the Justices appointed by one
side or the other will rule based not on the facts of the case before them, but rather on a
strict basis of the platform of their party.

Pick a "hot-topic", and you can pretty much always predict which side each justice will
side with, regardless of the actual facts of the case.   Some bias is inevitable, but when
the case is decided (almost always 5-4) before it's filed, the system is broken.



You're not actually addressing what I said at all.  There are objective facts in something like a murder trial where there might be the victim's blood in the killer's car etc. but in a case like this where they are interpreting a law there really are no "facts."

When a political case does not have a falsifiable answer you simply can't answer it without ideology.  The only true non ideological position is to be neutral (though ideology might also push someone to be neutral).
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Re: Prop 8 Ruled Unconstitutional
« Reply #36 on: August 18, 2010, 12:34:39 AM »

Call me over-idealistic, but I'd prefer a Supreme Court free of ideologues,
no matter what 'side'.

BWHAHAHAHAHA!

It's not just that politics will not stop being political it is that there is no such thing as an objective way to judge.  ANY view of politics is going to be ideological.

Something is objective if and only if it is falsifiable. Meaning there must be a theoretical demonstration that would refute it. For example, an unsolved mathematical problem called the Goldbach conjecture states that every even integer greater than 2 is the sum of two primes. This is falsifiable because all you have to do is find an even integer greater than two that can not be described as the sum of two primes (computer software has been used to confirm that it works up to absurdly large numbers).

So many ethical philosophers and legal scholars fool themselves into thinking that there can be some sort of scientific approach to what really is no more objective than fashion design.

For example, I will now state that the commerce clause of the Constitution gives police the right to punch babies because they represent a lot of commerce. I challenge anyone to come up with a fully consistent and complete argument that this is not the case. Such an argument must not reference concepts simply because they are widely accepted...
Ideologue (n) - An advocate of a particular ideology, especially an official exponent of that ideology.


The advocates should be the lawyers arguing the case.  If the Justices have already taken
a side before the case is heard, it rather defeats the purpose of the court, doesn't it?

It's inevitable that someone politically-conected to the degree necessary to be appointed
to the Supreme Court will have "leanings", but it's gotten so the Justices appointed by one
side or the other will rule based not on the facts of the case before them, but rather on a
strict basis of the platform of their party.

Pick a "hot-topic", and you can pretty much always predict which side each justice will
side with, regardless of the actual facts of the case.   Some bias is inevitable, but when
the case is decided (almost always 5-4) before it's filed, the system is broken.



You're not actually addressing what I said at all.  There are objective facts in something like a murder trial where there might be the victim's blood in the killer's car etc. but in a case like this where they are interpreting a law there really are no "facts."

When a political case does not have a falsifiable answer you simply can't answer it without ideology.  The only true non ideological position is to be neutral (though ideology might also push someone to be neutral).
Such decisions are the role of lower courts.  The appellate courts decide questions about how the law or laws
apply to a case, generally when two or more legal principles conflict, or at least seem to conflict.  Bob's a murderer,
without a doubt, but the damning evidence was found using an improperly-filed search-warrant...  Suzie didn't get
into the college she wanted, because (the college claims) The Law requires them to admit a less-qualified minority
student...  Black-and-white questions can be entrusted to twelve everyday people too dumb to get out of jury duty,
but anything more subtle than that...

My problem is the difference between a bias and a prejudice.
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Re: Prop 8 Ruled Unconstitutional
« Reply #37 on: August 22, 2010, 01:13:50 PM »

Call me over-idealistic, but I'd prefer a Supreme Court free of ideologues,
no matter what 'side'.

BWHAHAHAHAHA!

It's not just that politics will not stop being political it is that there is no such thing as an objective way to judge.  ANY view of politics is going to be ideological.

Something is objective if and only if it is falsifiable. Meaning there must be a theoretical demonstration that would refute it. For example, an unsolved mathematical problem called the Goldbach conjecture states that every even integer greater than 2 is the sum of two primes. This is falsifiable because all you have to do is find an even integer greater than two that can not be described as the sum of two primes (computer software has been used to confirm that it works up to absurdly large numbers).

So many ethical philosophers and legal scholars fool themselves into thinking that there can be some sort of scientific approach to what really is no more objective than fashion design.

For example, I will now state that the commerce clause of the Constitution gives police the right to punch babies because they represent a lot of commerce. I challenge anyone to come up with a fully consistent and complete argument that this is not the case. Such an argument must not reference concepts simply because they are widely accepted...
Ideologue (n) - An advocate of a particular ideology, especially an official exponent of that ideology.


The advocates should be the lawyers arguing the case.  If the Justices have already taken
a side before the case is heard, it rather defeats the purpose of the court, doesn't it?

It's inevitable that someone politically-conected to the degree necessary to be appointed
to the Supreme Court will have "leanings", but it's gotten so the Justices appointed by one
side or the other will rule based not on the facts of the case before them, but rather on a
strict basis of the platform of their party.

Pick a "hot-topic", and you can pretty much always predict which side each justice will
side with, regardless of the actual facts of the case.   Some bias is inevitable, but when
the case is decided (almost always 5-4) before it's filed, the system is broken.



You're not actually addressing what I said at all.  There are objective facts in something like a murder trial where there might be the victim's blood in the killer's car etc. but in a case like this where they are interpreting a law there really are no "facts."

When a political case does not have a falsifiable answer you simply can't answer it without ideology.  The only true non ideological position is to be neutral (though ideology might also push someone to be neutral).
Such decisions are the role of lower courts.  The appellate courts decide questions about how the law or laws
apply to a case, generally when two or more legal principles conflict, or at least seem to conflict.  Bob's a murderer,
without a doubt, but the damning evidence was found using an improperly-filed search-warrant...  Suzie didn't get
into the college she wanted, because (the college claims) The Law requires them to admit a less-qualified minority
student...  Black-and-white questions can be entrusted to twelve everyday people too dumb to get out of jury duty,
but anything more subtle than that...

My problem is the difference between a bias and a prejudice.

You are still not addressing my point.

The point I was making is that the more subtle questions addressed by higher courts don't have objective answers and therefore fall onto ideology.

Higher court judges are essentially appointed politicians.  There is no way around that.

And I just want to say that there are plenty of cases where the 12 who were too dumb to get out of jury duty could not interpret the evidence in a black and white criminal case either  :D
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Re: Prop 8 Ruled Unconstitutional
« Reply #39 on: August 27, 2010, 07:16:01 PM »

Stuff
Stuff
Stuff
[/size]Other stuff
More stuff
My problem is the difference between a bias and a prejudice.

You are still not addressing my point.

That line is not even coming close to addressing what I said about how a non ideological supreme court is a nonsensical idea.
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Re: Prop 8 Ruled Unconstitutional
« Reply #40 on: August 28, 2010, 12:10:02 PM »

Stuff
Stuff
Stuff
[/size]Other stuff
More stuff
My problem is the difference between a bias and a prejudice.

You are still not addressing my point.

That line is not even coming close to addressing what I said about how a non ideological supreme court is a nonsensical idea.
I'll type slowly....
A bias is a pre-existing favor for one side of an argument over the other.  It is, as you
suggest, pretty much inevitable for a politically-appointed jurist, but it is still subject
to reasoned counter-argument.  While the judge in question might lean particularly to
(for example) the political Right, he (or she) might be persuaded that a particular gun
control law does not unacceptably impede a citizen's 2nd Amendment rights, or that
this bit of anti-abortion law is an unconstitutional intrusion on a woman's privacy...

A PREJUDICE...  well, even if you've never taken Latin:  pre + judice : prejudge....
Before the first brief has been filed, before any arguments have been presented, a majority
of the current court will have made up its mind, without any hope of its being changed, based
purely on the ideological slant of their 'patron' political party.

______________________________________________________ _________________________

This just in, possibly relevant to the above topic, if not this particular branch of it:
Remember the 60s, when "the black vote" went from the Republicans (Abe Lincoln's party)
to the Democrats (JFK) ?  ---  NO?  Well, it happened....

It's starting to look like the Dems are going to hand "the gay vote" back to the GOP.
Note:
- homophobe Dem President- pushing for gay rights, but only using one hand 'cuz
  he's holding his nose with the other.

-Republicans embracing a very fiscal-minded, small-government sort of rehtoric,
 while moving social issues to the back burner...

-Powerful figures in the GOP either coming out or simply taking the stance that
 a person's sexuality is nobody's business but their own....  and nobody says a
 word about it (not like ten or fifteen years ago...)
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Re: Prop 8 Ruled Unconstitutional
« Reply #41 on: August 29, 2010, 03:56:33 PM »

Stuff
Stuff
Stuff
[/size]Other stuff
More stuff
My problem is the difference between a bias and a prejudice.

You are still not addressing my point.

That line is not even coming close to addressing what I said about how a non ideological supreme court is a nonsensical idea.
I'll type slowly....
A bias is a pre-existing favor for one side of an argument over the other.  It is, as you
suggest, pretty much inevitable for a politically-appointed jurist, but it is still subject
to reasoned counter-argument.  While the judge in question might lean particularly to
(for example) the political Right, he (or she) might be persuaded that a particular gun
control law does not unacceptably impede a citizen's 2nd Amendment rights, or that
this bit of anti-abortion law is an unconstitutional intrusion on a woman's privacy...

A PREJUDICE...  well, even if you've never taken Latin:  pre + judice : prejudge....
Before the first brief has been filed, before any arguments have been presented, a majority
of the current court will have made up its mind, without any hope of its being changed, based
purely on the ideological slant of their 'patron' political party.

You don't have to type slowly, you just have to say what you meant in the first place...

I see what you meant now.  I agree that the Supreme Court Justices probably already think they know everything and won't listen to any legal argument.  So I don't disagree with you but I think the reason I was having trouble understanding you before is because I had assumed you were trying to argue with me which does not seem to be the case.

Your point is largely separate from mine.  I think you might even agree that there is no objective way to interpret the law?
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Re: Prop 8 Ruled Unconstitutional
« Reply #42 on: August 29, 2010, 05:05:43 PM »

I think you might even agree that there is no objective way to interpret the law?
Depends on the law.

How fast were you going?

Did you blow up the Mini-Mart?

How many wives do you have?

So, 80 pounds of prescription meds in your carry-on bag..... :knuppel2:
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Re: Prop 8 Ruled Unconstitutional
« Reply #43 on: September 02, 2010, 01:13:17 PM »

I think you might even agree that there is no objective way to interpret the law?
Depends on the law.

How fast were you going?

Did you blow up the Mini-Mart?

How many wives do you have?

So, 80 pounds of prescription meds in your carry-on bag..... :knuppel2:

those are indeed objective questions but the laws behind them can still have ambiguous wording and the constitutions (state and federal) behind those are ALWAYS subjectively interpreted.
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Nihilism and constitutional interpretation
« Reply #44 on: September 02, 2010, 05:25:11 PM »

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CeeGBee

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Re: Prop 8 Ruled Unconstitutional
« Reply #45 on: September 02, 2010, 11:22:18 PM »

Lawyers get paid so much precisely because they have to read that kinda stuff,
but it's past my bedtime, so I think I'll pass....
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CeeGBee

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Re: Prop 8 Ruled Unconstitutional
« Reply #46 on: September 07, 2010, 11:24:07 AM »

Well here's a shocker from the New York Times...

Polarization of Supreme Court Is Reflected in Justices’ Clerks
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lentower

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Re: Prop 8 Ruled Unconstitutional
« Reply #47 on: September 10, 2010, 09:08:32 AM »

Well here's a shocker from the New York Times...

Polarization of Supreme Court Is Reflected in Justices’ Clerks

reflecting the presidents, congresses, and times that selected them
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Shock G

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Re: Prop 8 Ruled Unconstitutional
« Reply #48 on: January 03, 2011, 12:09:16 PM »

Just a random note "8: The Mormon Proposition" can now be watched instantly on Netflix, and is a pretty interesting documentary.
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imaginary friend

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imaginary friend

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Re: Prop 8 Ruled Unconstitutional
« Reply #50 on: February 06, 2012, 04:48:57 PM »

ooooh the other day i saw malabimba the malicious whore! (i think you had shown me the poster, right?)
it was a bit trashy, a porno horror that wasn't scary at all, but that dealt somehow indirectly with serious themes such as ecclesiastic celibacy being against nature and so on.
some parts were just hilarious, not too bad afterall.

Cool bunnies!


And in the "no big surprise" department,  the 9th U.S. Circuit Court of Appeals issued of stay of Judge Walker's decision to allow same-sex marriages to have begun Wednesday while it considers the constitutionality of the state's gay marriage ban.



9th Circuit's decision coming tomorrow:    http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2012/02/06/BA1H1N3MS6.DTL

imaginary friend

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Re: Prop 8 Ruled Unconstitutional
« Reply #51 on: February 07, 2012, 01:41:10 PM »

CeeGBee

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Re: Prop 8 Ruled Unconstitutional
« Reply #52 on: February 07, 2012, 04:10:58 PM »

9th Circuit gave Prop 8 the big bounce:   http://www.msnbc.msn.com/id/46294255/ns/us_news-life/t/federal-court-rule-calif-ban-gay-marriage/#.TzFwGcjQfi4

 :brave:
It should be pointed out that the 9th Circuit ruled very narrowly that, after California enacted a law
allowing same-sex marriage, the prop-9 amendment specifically and deliberately deprived a specific
group of legal rights without any constitutionally-admissible reason.  If it hadn't been legal before
prop-9, this might not be the case, and the ruling's bearing in cases outside California is very limited.



...also....
While I agree with both the sentiment and the letter of the ruling, I think the courts have to be very
careful in overturning the directly-expressed wishes of the voters.
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imaginary friend

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Re: Prop 8 Ruled Unconstitutional
« Reply #53 on: November 13, 2012, 07:21:19 PM »

Supreme Court to meet Nov. 30 to decide whether to hear the challenges to Prop 8 and the Defense Of Marriage Act:   http://www.boxturtlebulletin.com/2012/11/13/50945


...I haven't been able to track any links down, but I heard on the radio a few hours ago that if Chief Justice Roberts can't find 4 Justices who think hearing the two cases is worthwhile, he's going to have both cases kicked back down to lower courts. Don't know if that's 4 Justices plus himself, or 4 Justices, period. It sounded like the latter, but...  ???
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