Family Issues

Republican Jurists for Gay Marriage

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David Boaz on the judge in the Prop 8 case:

this "liberal San Francisco judge" was recommended by Ed Meese, appointed by Ronald Reagan, and opposed by Alan Cranston, Nancy Pelosi, Edward Kennedy, and the leading gay activist groups. It's a good thing for advocates of marriage equality that those forces were only able to block Walker twice.

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  1. So I guess all those people calling Souter a liberal justice were wrong, too.

    1. As far as judges go, what makes Souter a liberal and not a libertarian?

      Out of curiosity, I don’t follow the supreme court all that closely.

      1. Supports affirmative action absurdities, for one (voted to deny the New Haven firemen their certification). He also voted for eminent domain abuse in Kelo. He probably voted the wrong way in other things, too.

        1. Supports affirmative action absurdities, for one (voted to deny the New Haven firemen their certification). He also voted for eminent domain abuse in Kelo. He probably voted the wrong way in other things, too.

          And McDonald v. Chicago .

          I do not know how Souter would vote if this case (and other similar cases that will surely be filed in the coming weeks) reaches the Supreme Court.

          But Justice Breyer quoted as valid reasoning in his dissent:

          “Some people assert that our present plight is due, in part, to the limitations set by courts upon experimentation in the fields of social and economic science; and to the discouragement to which proposals for betterment there have been subjected otherwise. There must be power in the States and the Nation to remould, through experimentation, our economic practices and institutions to meet changing social and economic needs. I cannot believe that the framers of the Fourteenth Amendment , or the States which ratified it, intended to deprive us of the power to correct [the social problems we face].”

      2. Libertarian is out of the question from the getgo, but he consistently sided with the liberal wing despite being appointed by a nominally conservative president in Bush I.

        1. The president who nominated him is no evidence. Johnson said his two biggest mistakes were sitting on the Suprime Court. Anactdotal, yes.

          1. LBJ’s appointments to the Supreme Court, Abe Fortas and Thurgood Marshall, are almost certainly in the top five list of alltime most liberal justices. I find it hard to believe that he would have had a problem with either. Except, maybe the fact that Fortas was eventually exposed as nearly as big a crook as LBJ was.

            You may be thinking of Eisenhower who made the statement in reference to Earl Warren and William Brennan.

            1. Correct – Eisenhower.

              Souter, Stevens and Breyer are remarkably left-leaning. Breyer wrote a book titled “Active Liberty” that was eye-opening for its candor – he explicity laid out his philosophy of “interpreting a democratic constitution” and made the case for judges being activist and deciding cases based on who SHOULD win, and what the societally preferable outcome is, rather than based on what the law says.

              For that book and what it revealed about what kind of “judge” he is, he should have been removed from the bench.

      3. Pop quiz:

        Has Thomas ruled on the same side as Scalia more often than Souter ruled on the same side as Ginsburg?

        The answer may surprise you!

        1. This is no indicator of how “liberal” of “conservative” a justice is, however. The question is on what basis were those rulings made, and how consistent is the justice WITH HIMSELF (or herself) from one case to another. Scalia is reasonably consistent (not so much as Thomas, though) in adhering to the original understanding of the Constitution. Souter and Breyer rule based on who they think should win, and then come up with some rationalizing and justification to support an interpretation of the Constitution that yields the desired result.

      4. Besides Kelo, he went the wrong way on Raich v. Gonzales, too.

  2. Not a bad reply, Tulpa, but Souter is a Bush Sr. appointee. You’d make your point better by pointing to a Reagan-era judge.

    Anyway, I gather that Walker is more of an Alex Kazinski than a David Souter.

    1. Not a bad reply, Jesse, but Walker’s seat on the bench is due to a nomination by Bush. His nomination under Reagan died in the Senate. (and in any case it was at the very end of Reagan’s presidency).

      1. Not a bad fling-it-back-in-my-face, Tulpa, but I think there’s a difference between Bush continuing what Reagan couldn’t complete and Bush starting the Souter process on his own. (And wasn’t Douglas Ginsburg, the great libertarian hope of the Reagan era, also nominated near the end of his presidency?)

        1. Not a bad showing Jesse, but, well, whatever.

  3. He must’ve grown and matured while on the bench.

  4. It’s a shame he didn’t stick to his advertised libertarian leanings and rule that the government had no business in marriage, period.

    1. I really don’t think that was the question at hand.

      1. It SHOULD be the question, Tony. Domestic-partnership law reform is the way to go.

        1. It should be, but the judge can only decide on the issues the parties decide to argue, and since that wasn’t an argument put forth by either side he couldn’t get to it.

          1. I’m not sure; government not having the right to meddle in marriage seems like something that would invariably come up in a situation like this.

            1. Nope. Federal courts rule only on the most narrow ground necessary to resolve the controversy before it. If it is not necessary to explore an issue and answer it to decide in favor of one party or the other, the court won’t go there. As has been stated, the court also will not raise issues on its own that the parties have not raised in their pleadings.

              1. I meant, that should be the question at hand for the gay community, not the court.

  5. I’ll never forget when the Kelo decision came down. NPR and the rest of the MSM were spinning hard that it was supported by a majority of REPUBLICAN JUDGES ON THE SUPREME COURT (Stevens,Souter,Kennedy)

  6. The idea that Meese had (or has) “conservative cred” seems strange.

    The G.O.P. put(s) him to use, but I don’t remember Reagan conservatives outside the administration ever pointing to him as exemplary. Is there any non-Beltway conservative now who even thinks he’s (or was) one of their “us?”

    I do remember his being the proper name that stood in for all ’80s Republican porno-Gestapo-die-for-oil suckness, in, like, between-song rants at hardcore shows.

    1. What wasn’t conservative about Meese? He was one of the first to advocate theft, e.g., “confiscation” of property by the government. anti-porn, heavily courted evangelical Christians.

      Blah, blah, blah.

  7. I’d say the Human Rights Campaign, the Lambda Legal Defense Fund, and the National Gay and Lesbian Task Force owe this judge a big, loud, public apology.

    1. “apology” – is that what the kids are calling it nowadays?

  8. Republican Jurists for Gay Marriage

    I’m for gay marriage, too! (i.e. I’m all for not restricting a non-married gay person from marrying a consenting, non-married person of the opposite sex who is not a close relative.)

    1. Fine, then heteros can only marry a person of the same sex. That would be equal treatment.

      1. Are you implementing this policy via fiat, Mr. Dictator?

        1. Via referendum in a homosexual majority society.

          1. Oh, well, OK then… Wait, did you just say “homosexual majority society”? What part of that phrase makes you think such a thing is remotely possible? At least past one generation.

            1. I think he knows that, but was using it as a rhetorical device to point out that tyranny of the majority is not a good thing.

              1. I think he knows that, but was using it as a rhetorical device to point out that tyranny of the majority is not a good thing.

                But does defining marriage as between one man and one woman constitute tyranny?

          2. I admit, I’m kinda jaded on this whole marriage thing in general, but shit… if every couple had the same legal rights, we wouldn’t NEED marriage.

          3. Only about 45% of the population to go for your dream to come true. Keep trying.

          4. Please define “homosexual majority society.” And please provide one valid example of such.

            1. He was positing a hypothetical to make his point.

      2. Of course, exactly what is the societal interest in having marriage at all if it would apply to only same-sex couples? What good purpose would marriage serve then?

        1. Gay people have children too. Not in the usual way, of course, but neither do all hetero married couples.

    2. I’m all for not restricting a non-married gay person from marrying a consenting, non-married person of the opposite sex who is not a close relative.

      You’re all for it? Hardly seems like it would fall in line with the traditional purpose of marriage being procreation argument that I’ve seen conservative commenters here make.

      1. Huh? A gay person who marries a consenting, non-married person of the opposite sex who is not a close relative can procreate just fine.

        1. No shortage of women couples who send one out for the random guy to give them a baby, without his knowledge. Seems rare that they track him down for support too.

        2. You must set a really low bar for the meaning of “just fine”.

    3. Can we please stop this “hur hur gays CAN get married” bullshit, they tried the same sophistry with interracial marriage and it wasn’t any more convincing then.

      1. A difference in race create no different circumstances for a couple in a sexual relationship. Gender differences do create different circumstances for such.

        Comparing same-sex relationships to interracial reltionships is nonsense on stilts.

        1. You say this based on what, now?

        2. What if the couple is unable to procreate? What is the difference then with a gay couple?

          If you think that marriage is for procreation, and that that is a valid reason to prevent gays from marrying, then you need also to test straight couples for fertility before letting them marry.

      2. Not the same thing, Anon.

        What is it with comparing everything to the civil-rights movement, anyway? I’ve had that thrown at me on the local level, on the argument over a smoking ban in privately-owned businesses. And God knows how many stupid fuckers have compared it to the health-care mandate debate.

      3. Can we please stop this “hur hur gays CAN get married” bullshit, they tried the same sophistry with interracial marriage and it wasn’t any more convincing then.

        Ah, but this sophistry was convincing regarding anti-bigamy laws in the Utah territory.

        Mormons in the Utah territory were free to marry one person of the opposite sex.

  9. I’m also against gray marriage.

    1. Your elder-phobia sickens me.

      1. No, he’s talking about the (likely undocumented) aliens.

        1. Getting married to Americans as an immigration ‘vehicle’?

  10. I like your blog,you post nice blog.Thanks for sharing this blog with us.Has Thomas ruled on the same side as Scalia more often than Souter ruled on the same side as Ginsburg?

  11. yet another reason why we should stick closer to the republicans than the dems. Conservative judges actually rule our way once in a while. Liberal judges almost never do unless the conservative ones are already doing so.

  12. So far as I understand, no gay couple has been forbidden from exercising any individual liberty.

    Therefore, was any argument put forth by the losing-side that marriage — within the current context — is a government benefit program, and as with all such programs, there are those who do not qualify? E.g., the wealthy cannot enjoy the benefit of food stamps since the entire point of food stamps is to help the poor.

    Of course this might raise the uncomfortable question about what exactly the state is trying to achieve with this particular scheme (now that anti-miscegenation is no longer the driver).

    1. If a man is allowed to have a wife, then so is a woman, or else they do not enjoy equal protection under the law. Simple as that.

      1. If a man is allowed to have a wife, then so is a woman, or else they do not enjoy equal protection under the law. Simple as that.

        If an underage girl is allowed to have sex with an underage boy, then so should an underage boy be allowed to have sex with an underage girl, or else they do not enjoy equal protection under the law.

        Now go read Michael M. v. Superior Court of Sonoma County .

  13. Anyway, and in all seriousness, as same-sex marriage seems to be the future, can the state legitimately continue to ban other forms of marriage, such as polygamy? May a man be “allowed” to have a husband and two wives? Why not?

    1. They can and will continue to ban it. I don’t know how legitimate it will be. Polygamists will most likely never have the political clout that gays and lesbians have today. At least not in my lifetime. But, I could be wrong.

      1. They’ll have to start with an edgy sitcom. Call it, Two Men and Three Women, or Five’s Company, and take it from there. Some flamboyant marches through Salt Lake City, funding for a Center for the Study of Polygamy, an Oprah’s Book Club Pick (My Mommy and Three Daddys). Eventually the culture will embrace it.

        1. I like it. They’ve got a good start with Big Love on HBO. The only problem is it’s probably too realistic, portraying polygamy as a pain in the ass rather than glamorizing it. The sitcom has to be the next step.

    2. Anyway, and in all seriousness, as same-sex marriage seems to be the future, can the state legitimately continue to ban other forms of marriage, such as polygamy? May a man be “allowed” to have a husband and two wives? Why not?

      It depends on how the state enacts legal recognition of same-sex “marriage”

  14. Kennedy and Pelosi considered all Republican nominees as too conservative. Not like that proves the nominee is always conservative.

  15. Anthony Kennedy was also appointed by President Reagan. He voted for abortion (I mean “choice”) in the *Casey* case.

    Justice O’Connor was appointed by Reagan, but voted against Texas’ criminal sodomy statute – and her reward was to have Judge Walker brand her as irrational because she thinks laws against same-sex marriage can be justified by other reasons than “mere” moral disapproval.

    Justice Byron White, a Democratic Party member and supporter of the John F. Kennedy campaign, was appointed to the Supreme Court by . . . John F. Kennedy. Yet this great Democratic judge dissented from *Roe v. Wade* ((and its companion case of Doe v. Bolton – scroll down for his dissent in both cases).

    Here are some of the fascistic sentiments expressed by the great Democratic Judge Byron White, appointed by a great Democratic President: “The Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries. Whether or not I might agree with that marshaling of values, I can in no event join the Court’s judgment because I find no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States.”

    Is Justice White inherently credible because he was “OMG appointed by a *Democratic* President and OMG he’s a Democrat, too!”

    1. Byron White wasn’t just some random political hack – he was in the Kennedy Justice Department and he went into the Jim Crowiest parts of the Jim Crow South seeking to enforce racial-integration orders.

      Isn’t it sad that such a great Democrat and lover of justice and equality should turn fascist in the *Roe* case?

      1. Most humans have conflicting, contradictory, inconsistent philosophies.
        Judges are human.
        Therefore…

      2. Most humans have conflicting, contradictory, inconsistent philosophies.
        Judges are human.
        Therefore…

      3. Most humans have conflicting, contradictory, inconsistent philosophies.
        Judges are human.
        Therefore…

      4. Dissenting in Roe v. Wade makes you a fascist?

    2. Justice O’Connor was appointed by Reagan, but voted against Texas’ criminal sodomy statute – and her reward was to have Judge Walker brand her as irrational because she thinks laws against same-sex marriage can be justified by other reasons than “mere” moral disapproval.

      Ironically, Judge Walker quoted her concurrence.

      That was an epic fail, as judges should not quote opinions that undermine their ruling.

      Justice Byron White, a Democratic Party member and supporter of the John F. Kennedy campaign, was appointed to the Supreme Court by . . . John F. Kennedy. Yet this great Democratic judge dissented from *Roe v. Wade* ((and its companion case of Doe v. Bolton – scroll down for his dissent in both cases).

      Byron White had a broader interpretation of the 14th Amendment. He dissented in Michael M. v. Superior Court, believing that punishing underage boys for having sex with underage girls while exempting underage girls from punishment for sex with underage boys violated the equal protection clause.

      And yet, he delivered the opinion in Bowers v. Hardwick .

  16. Time Magazine piece on people being arrested for video taping the cops:

    Anthony Graber, a Maryland Air National Guard staff sergeant, faces up to 16 years in prison. His crime? He videotaped his March encounter with a state trooper who pulled him over for speeding on a motorcycle. Then Graber put the video ? which could put the officer in a bad light ? up on YouTube.

    It doesn’t sound like much. But Graber is not the only person being slapped down by the long arm of the law for the simple act of videotaping the police in a public place. Prosecutors across the U.S. claim the videotaping violates wiretap laws ? a stretch, to put it mildly.

    These days, it’s not hard to see why police are wary of being filmed. In 1991, the Los Angeles Police Department (LAPD) beating of Rodney King was captured on video by a private citizen. It was shown repeatedly on television and caused a national uproar. As a result, four LAPD officers were put on trial, and when they were not convicted, riots broke out, leaving more than 50 people dead and thousands injured (two officers were later convicted on federal civil rights charges).
    (See TIME’s special: “15 Years After Rodney King.”)

    More recently, a New York Police Department officer was thrown off the force ? and convicted of filing a false report ? because of a video of his actions at a bicycle rally in Times Square. The officer can plainly be seen going up to a man on a bike and shoving him to the ground. The officer claimed the cyclist was trying to collide with him, and in the past, it might have been hard to disprove the police account. But this time there was an amateur video of the encounter ? which quickly became an Internet sensation, viewed more than 3 million times on YouTube alone.

    http://www.time.com/time/natio…..66,00.html

    1. Personally, I’d like to see a Federal law specifically legalizing the practice of video and/or audio recording government employees when they interact with citizens. A Supreme Court ruling (to bring this sort of on topic) would work too.

  17. I’m in favor of gay marriage. I just can’t quite see my way clear to saying that its a Constitutional right guaranteed by the equal protection clause.

    1. Lucky for us, you’re not the judge hearing this case.

      1. Unfortunately for us, you believe the ends (same-sex marriage in all fifty states) justify the means (imagining a Constitutional right).

        But don’t worry: consequentialism could never backfire or anything.

        1. Unfortunately for us, you believe the ends (same-sex marriage in all fifty states) justify the means (imagining a Constitutional right).

          But don’t worry: consequentialism could never backfire or anything.

          Not only is there no way to divine a right to “marry” someone of the same sex from the 14th Amendment, the Supreme Court ruled that the 14th Amendment did not protect such a right, when they dismissed an appeal in Baker v. Nelson .

          The Supreme Court ruled about the applicability of precedents in lower courts in Rodriguez de Quijas v. Shearson/American Express, Inc. . In that case, they overruled a prior precedent, Wilko v. Swan

          We do not suggest that the Court of Appeals, on its own authority, should have taken the step of renouncing Wilko. If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.

          Walker was bound by Baker , a decision that he did not even address.

    2. It’s pretty simple, IMHO-if one group can marry, another group should be able to do so as well, under the equal protection clause.

      1. So amend the Constitution.

        Reinterpreting the Constitution is unacceptable, for reinterpration is effectively a de facto amendment to the Constitution.

  18. There will other suits filed by homosexual fundamentalists in other districts, both within the Ninth Circuit and in other circuits.

    If this case reaches the Supreme Court, it would be decided jointly with other cases.

    1. Ejercito sure seems to be obsessed with man-on-man love based on how much he runs around the internet posting about it. Kind of makes you wonder about him….

  19. So, are me and my college roommate now common law same sex partners?

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