Courts

"Prop 8's backers deserve their day in court"

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He doesn't mean yesterday's ruling.

Yesterday the California Supreme Court unanimously held that the official proponents of California's Proposition 8, which amended the state constitution to forbid gay marriage, had the legal standing to defend the measure in court. Since the state government has refused to offer a legal defense, this clears the way for the 9th Circuit Court of Appeals (and maybe the Supreme Court after that) to hear the challenge to federal Judge Vaughn Walker's 2010 decision striking the ban down filed by Prop. 8's proponents.

Should gay marriage supporters be upset about this? After all, had the California Supreme Court ruled the other way, Judge Walker's ruling would stand (since the state isn't pursuing the case). Writing at The Huffington Post, Western State University law professor David Groshoff basically says, yes, gay marriage advocates should be upset at the "foolish" ruling, which he claims handed an unnecessary victory to "those opposed to queer couples having the right to marry in California." In fact, he writes,

should enough advocates of queer couples' marriage rights be appalled by today's decision, perhaps they should take the (albeit frightening) page from the anti-queer advocates in Iowa and attempt to recall these judges from the bench by a popular vote.

Meanwhile, at the progressive magazine Mother Jones, Kevin Drum wisely reminds gay marriage advocates to think about the big picture:

It feels more than usually loathsome to take sides with the Prop 8 folks here, but this is a good decision. It would be a travesty if a successful ballot measure could be overturned by a single district court judge and then, by virtue of a procedural formality, stay overturned simply because state officials declined to defend one of their own laws. If the tables were turned, I'd be blisteringly outraged by shenanigans like this.

Like it or not, Prop 8 was passed legally and properly. If it's overturned, it should be overturned on its merits — as Walker's decision did — not thanks to a legal technicality. I hope they lose, but Prop 8's backers deserve their day in court.

NEXT: Campaign Finance and the Problem of Big Government

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  1. Isn’t “queer” supposed to be a pejorative? Kind of odd that he would use that word.

    1. Where have you been? Queer has been an acceptable word for that sort of thing for at least 10-15 years.

      1. When self-applied by members of the gay community, “queer” is like a title of solidarity. When used by outsiders, though, it’s considered an epithet. Kind of like “nigga.”

        1. I don’t know. Perhaps it depends on where you are. When I was in college (and that was over 10 years ago) it sure seemed like what they wanted to be called. I think it is also how it is used. It is probably not very acceptable to call someone “a queer”. But referring to the “queer community” or something like that is OK as far as I can tell. I think it is meant to be more inclusive than “gay”.

        2. I’ve never seen that. None of the queers I’ve known would care if I used that word. In fact I think there may have been a class in “Queer Literature” at my college. As far as I understand it it is a perfectly acceptable word. (I’m 25 for age context) Fag is the word that is sometimes used like nigger though in my experience its use as a title of solidarity is nowhere near as extensive. I think it really all depends on context.

          Of course both words have alternate uses that are perfectly appropriate:

          As I smoked a fag I considered what a queer day it had been.

      2. It has an “in your face” connotation that says a lot about the person using it.

  2. I like the “A Moral Wrong Cannot Be a Civil Right” sign. I thought it was the buttfucking that was the moral wrong, not so much the marrying. And buttfucking has been established as a civil right now. They should be protesting the Supreme Court, not Prop 8.
    I would think that the people that think being gay is immoral should be happy that at least some of them want to behave more like “normal” people instead of fucking each other through glory holes all the time.

    1. “I like the “A Moral Wrong Cannot Be a Civil Right” sign.”

      I do too, it’s very telling to me.

      I remain convinced that the people most vociferously against gay marriage, gay sex, etc. are, at least inwardly, ambivalent with regard to their sexuality. So while that man holding the sign might not know firsthand what a penis tastes like, I guaran-damn-tee you he’s wrestling with some demons.

  3. I would be remiss in not pointing out that willingly giving the state the power to define your relationship gets you a mess like this.

    1. Yeah, I mean if the voters of Cali want to be a bunch of fascists, what can you do?

      1. Prop 8 was clearly a defeat for advancing the cause of individual liberty, but the referrendum process of amending a state constitution shouldn’t be nixed by hack judges.

        1. I was just surprised that it only takes a simple majority to amend the constitution. What’s teh point of a constitution if it as easy to change as any other law?

          1. CA is, shall we say, ‘strange’.

  4. “Should gay marriage supporters be upset about this?”

    Professor Groshoff is right: To truly follow the spirit of the “queer” movement (as he calls it), it is necessary to brush aside any procedural obstacles in the way of gay marriage. They won in the lower court, and anything which gives their opponents their day in a higher court runs the risk that they will lose and the lower court might be overruled.

    This has been the spirit of the gay-marriage movement from day one – never mind procedural niceties, only the cause matters. That’s why they went to the courts rather than (outside a few jurisdictions) seeking changes of the law through the legislative process.

    And in all seriousness, Prof. Groshoff is quite right to say that supporters of gay marriage should retaliate against the California justices. If your one big issue is gay marriage, and the justices have ruled against you on that issue, then why *should* you vote for them? Unless you take procedural arguments seriously, which California’s gay-rightsers don’t do.

    1. People should deny themselves all avenues of redress because… it’s ungentlemanly? Or what? The legislative process is what erred here. To correct that error is what challenging laws in courts is for.

      1. I can’t even figure out what position you’re attributing to me, but in fact I’m agreeing with you. Based on the spirit of California’s same-sex marriage movement, they *should* deny their opponents their day in court.

        The only people who should want to give the opponents their day in court are those who are less extreme than the California gay-marriage movement. But only a hater would dare suggest that the movement is extreme.

        1. Oh, I see, you’re responding to my comment about the legislative process versus government by judiciary. It’s a point on which I suspect we have different opinions. Like whether the courts should be applying the law or making it up as they go along.

          1. Either all laws are legal or the courts have the power to decide. Who else does it?

            1. My point was courts apply existing law (including the constitution), they aren’t supposed to change the law. If a court declares that the constitution has some meaning completely opposed to how it was unanimously interpreted until some activists demanded a change, that is almost certainly a sign that the court is changing, not applying the law.

              The individual-rights provisions in the California Constitution date back (in some cases) to 1850. If these provisions redefined marriage, it would have been commented on at the time, not belatedly discovered under the sofa cushions considerably later.

              1. “My point was courts apply existing law (including the constitution), they aren’t supposed to change the law.”

                Declaring a law unconstitutional certainly ‘changes’ a law, and courts are charged with finding whether laws are constitutional or not.

                1. The constitution is a law, and courts shouldn’t be changing the constitution, as they do when they find a previously-unknown right to same-sex marriage behind the cushions in constitutional provisions which were never intended to do such a thing.

                  1. “The constitution is a law,..”
                    Nope.
                    The “Constitution” defines what “laws” may be passed.
                    Try again.

                    1. The U.S. Constitution is “the supreme *Law* of the Land,” Art. VI, Sec. 2. (emphasis added)

    2. True, and in fact this is the left’s approach to every issue.

  5. I voted against Prop 8 (and Prop 22 before that), but we have to respect the will of the majority (even when they’re wrong). Opponents should educate the public about their position and overturn it with another proposition–not rely on left-wing judges to overturn the will of the people.

    1. “I voted against Prop 8, but we have to respect the will of the majority . . . [and] not rely on left-wing judges to overturn the will of the people.”

      So when judges overturn laws like this, paving the way for gay marriage, who exactly has been victimized, and how?

      (P.S. Simply having your “will” subverted doesn’t count as victimization)

      1. Innkeepers may be victimized, if by that you mean being threatened with legal retribution for noncoercive business practices and having the gall to select their own guests:

        http://www.post-gazette.com/pg…..d=news.xml

        And if you are a religious “Camp Meeting Association,” you face the risk that you can be forced to use your private property for purposes contrary to your beliefs:

        http://www.nj.com/news/index.s…..ch_gr.html

        (like a synagogue being forced to rent space to Louis Farrakhan)

        1. I agree with you for the most part, but the culprit in those cases is anti-private-sector-discrimination legislation in general, not just gay marriage.

          1. The gay-marriage laws should have provisos similar to the provisosn some traditional-marriage laws: Specifically recognize the right of private parties to define marriage however they want for purposes of employee benefits, tenant rules, etc. If they don’t want to put in such provisos (or if they have very narrow provisos which don’t protect the majority of private parties), then voting for the bill (as we now know) is voting to expand govt regulation of the private sector. Those who vote for such bills should not be entitled to boast how they “got the government out of our lives!”

            1. “The gay-marriage laws should have provisos similar to the provisosn some traditional-marriage laws: Specifically recognize the right of private parties to define marriage however they want for purposes of employee benefits, tenant rules, etc.”

              I’ve never seen such exclusions; cite?

              1. That’s my point – these laws don’t contain such provisions. They can’t be defended on libertarian grounds.

                What’s more, any effort to put such provisos in these bills would almost certainly get voted down in legislatures which support SSM.

                It’s the traditional-marriage crowd which is willing to recognize autonomy by participants in the private sector. Eg:

                “This section does not prohibit a private party from entering into contracts with another private party; nor does this section prohibit courts from adjudicating the rights of private parties pursuant to such contracts.”

                http://www.ncleg.net/Sessions/…..S514v5.pdf

                1. “That’s my point – these laws don’t contain such provisions. They can’t be defended on libertarian grounds.”
                  Marriage laws cannot, but denial of the same to arbitrary groups certainly can.
                  —–
                  “It’s the traditional-marriage crowd which is willing to recognize autonomy by participants in the private sector. Eg:…”
                  Uh, the less said about that, the better; they’re willing yield on matters with no risk of loss.

                  1. With the unpopularity of corporations nowadays, how hard would it be for a right-wing populist to demand a law against corporations’ gay-friendly policies? They don’t demand it because they aren’t interested in it – they want the government to recognize traditional marriage only, not force that policy on private parties.

                    The mainstream of the SSM movement, however, makes no such distinctions, seeking to have private employers, landlords, innkeepers, wedding photographers – you know, evil corporations – recognize SSM on pain of fines (at least).

                    1. “With the unpopularity of corporations nowadays, how hard would it be for a right-wing populist to demand a law against corporations’ gay-friendly policies? They don’t demand it because they aren’t interested in it – they want the government to recognize traditional marriage only, not force that policy on private parties.”

                      Uh, what?
                      “To express the concerns and distaste for Wal-Mart’s recent associations, religious activists have also released plans to protest outside various locations, with bibles and prayers at the ready. A representative of Operation Save America said, “This has been Christian families’ favorite store?and now they’re giving in, sliding down the slippery slope so many other corporations have gone down. They’re all being extorted by the radical homosexual agenda.”
                      http://www.bulldogreporter.com…..ffective-p

                    2. I think you’re helping to rebut your own position that “they’re willing to] yield on matters with no risk of loss.” They could get quite a boost if the traditional-marriage amendments contained anti-corporation clauses, but their interest is in government, not private policy.

                      The boycotts are done without assistance from government – they’re not trying to prevent *other* people from being Wal-Mart shoppers; they’re withholding their own patronage if Wal-Mart doesn’t make certain changes.

                      These activists seem to have a better grasp of the public/private distinction than the SSM crowd.

      2. So when judges overturn laws like this, paving the way for gay marriage, who exactly has been victimized, and how?

        If SCOTUS upholds Obamacare’s individual mandate, who will have been victimized?

        1. If SCOTUS upholds Obamacare’s individual mandate, who will have been victimized?

          Everyone who’s forced to purchase a product they might not necessarily want, namely (as opposed to the anti-gay marriage people, whose only claim to harm will be that they have to abide the fact that a lifestyle they don’t approve of is now A-OK under the law).

          1. Not really “victimized” though. There’s no right not to be forced to buy health insurance.

            Few people here would argue that a state-level insurance mandate would be unconstitutional.

            1. “There’s no right not to be forced to buy…”
              You really don’t believe that, do you?

            2. “Not really “victimized” though. There’s no right not to be forced to buy health insurance.”

              Of course there’s a right not to buy insurance, and that right derives from the fact that the federal government has no authority to compel you to purchase it. So any actions they take to force you into compliance with an illegitimate law would make you a victim.

              Easy, huh?

              1. The feds lacking power to do something does not mean you have a right to not have it done.

                You didn’t address the fact that it would be A-OK (from a constitutional standpoint) for a state to force you to buy something.

                1. “The feds lacking power to do something does not mean you have a right to not have it done.”

                  Sure you do, at least not by the feds. The power to make you buy health insurance isn’t one of their few and enumerated powers; thus, it’s left to the states and the people respectively.

                  “You didn’t address the fact that it would be A-OK (from a constitutional standpoint) for a state to force you to buy something.”

                  You didn’t ask me to. Your original point, when you chimed in, was with regard to SCOTUS and ObamaCare. But, as for the states, I really don’t know whether it’s constitutional or not. Other than to say that making people buy health insurance wouldn’t be in keeping with the Founders’ intent, I’ll leave the question to the constitutional scholars here who are more qualified to wax eloquent on delegated powers, incorporation, etc. I will say, though, that I’m mindful of the reality of it every month when I pay a hundred bucks to USAA for my auto insurance.

                  1. That’s dirty pool. You’ve been waxing eloquent through this whole thread and suddenly you doubt your ability to do so? That’s crap.

                    I mean, in this very comment you take up a dubious interpretation of the 10th amendment — that it gives people a right not to have the federal govt exceed its enumerated powers. Clearly you view yourself as a person who understands constitutional interpretation, so no need to suddenly clam up on the question of whether states can have mandates.

                  2. And this from the guy who gave me a smartass “Easy, huh?” answer in his last comment. Your memory must be as bad as Steven Chu’s.

            3. I would say that one can be victimized by a legitimate (constitutionally) law.

              1. “I would say that one can be victimized by a legitimate (constitutionally) law.”
                Cite?

                1. I don’t think that state laws prohibiting drugs are generally unconstitutional, yet I would say that anyone convicted of drug possession or dealing is being victimized.

    2. Their is no evidence that Judge Vaugh
      Walker is or was a left-winger. There
      are gay republican and Walker is
      one of them.

      1. There have always been gay Republicans.

        Teddy Roosevelt had his special gay slang – like “charge up San Juan Hill” and “muckrake.”

        William Howard Taft was gay as often as he could be, but he couldn’t always find willing partners for some reason.

        Nixon was transgendered.

        1. Don’t get me started on Teddy Roosevelt and his buddies, the “Rough Riders.”

  6. “Like it or not, Prop 8 was passed legally and properly. If it’s overturned, it should be overturned on its merits ? as Walker’s decision did ? not thanks to a legal technicality. I hope they lose, but Prop 8’s backers deserve their day in court.”

    I find the idea of people’s rights being a popularity contest loathsome.

    Popular Sovereignty wasn’t the solution to slavery, and it isn’t the solution to protecting anyone else’s rights either.

    The courts should have been the proper venue for this from the beginning.

    My gun rights, for instance, should not be a popularity contest. If I don’t want to have to ask whatever 51% of the voters that includes gay people for permission to do what I want to do? Then gay people shouldn’t have to ask me and whatever 51% of the voters for permission to do what they want to do either.

    1. How do I cast a ballot to express my belief that my vote shouldn’t matter?

      Reason #178 why personal autonomy is better than democracy.

      1. Please explain how gaining govt endorsement of your coital arrangements is a necessity for, or even related to, personal autonomy.

        1. This post is about how someone thinks the courts are an inappropriate forum for this question–and suggests that the voters having voted is somehow sacred?

          “It would be a travesty if a successful ballot measure could be overturned by a single district court judge…”

          No one’s rights should depend on what 51% of the idiot masses think.

          One of the more important reasons the courts and the rule of law are there is to protect my rights and my personal autonomy from the voters.

          I have a hell of a lot more faith in the rule of law and personal autonomy than I do in how a bunch of my fellow Californians voted. If our rights depend on how 51% of Californians vote, our rights are in deep shit.

          I don’t understand why gay people would want their rights determined by popular sovereignty either…

          Did you follow this time?

          1. “No one’s rights should depend on what 51% of the idiot masses think.”

            So people’s rights should depend on what a single federal judge thinks?

            Or are you only advocating that in this case because you agree with that single federal judge’s conclusion?

            1. “So people’s rights should depend on what a single federal judge thinks?”

              Whose “rights”?

            2. Do you think a single judge should be ignored out of respect for democracy?

              If an overwhelming majority voted to ban guns and force Japanese-Americans to report back to the internment camps–do you think we should just go with that because of democracy?

              I have more faith in the courts to protect my rights than I do in the idiot voters or Congress–that’s for sure.

              I think my rights should be protected even if 99% of the American people voted against them, so, yeah, a single judge shooting down a disgraceful law that deprives people of their rights?

              I think that’s good government. You want to take away somebody’s rights?

              Charge them with a crime and get an jury involved. Don’t try to circumvent that through elections.

              1. The courts were *no better* than the voters re the Japanese-American relocation, and the courts have until recently been *worse* than the people re guns – few gun cases got to the higher courts because the voters limited what Congress did re guns – the courts would probably have allowed the feds to do more than the people allowed.

                1. “The courts were *no better* than the voters re the Japanese-American relocation”
                  Yep, the courts have failed at times. So?

                  1. An earlier poster was talking about the courts being better than voters re protecting rights. He gave the example of gun bans and Japanase internment. For the former, the bulwark of protection for the 2nd Amendment has been the people, not the courts – getting minimal recognition for the 2nd amendment was a hard-won thing in the courts, and they were lagging well behind the general public. The courts rubber-stamped the Japanese relocation. So for the guy’s two examples, the courts were demonstrably *not* better than the people.

                    1. “An earlier poster was talking about the courts being better than voters re protecting rights. He gave the example of gun bans and Japanase internment.”
                      Please re-read the comment; Ken didn’t say that.

                    2. Ken, did I get your comment right? Why did you mention two cases where the courts were *not* better than the voters?

                    3. “If an overwhelming majority voted to ban guns and force Japanese-Americans to report back to the internment camps–do you think we should just go with that because of democracy?”

                      I’m not Ken, but please read that again.
                      There is no claim made other than a question of the value place on “overwhelming” votes.

                    4. After the quoted passage, he added “I have more faith in the courts to protect my rights than I do in the idiot voters or Congress–that’s for sure.”

                      Of course, the guns-and-Japanese passage was in response to a yet earlier claim about broad deference to voters. But he *did* use the guns-and-Japanese example *just before* expressing greater confidence in courts than voters. For Internet debating purposes, I think I get to comment on this juxtaposition.

                    5. You can certainly comment, but we’re back where we were; courts screw up from time to time.
                      *IF* I read Ken’s comments correctly, they refer to the failure of democracy and the requirement of corrective institutions. Like courts.
                      No one is claiming perfection.

                    6. No, but I challenge the heroic narrative re the courts. They can do a good job with certain statutes – even statutes protecting rights – and they can sometimes uphold actual constitutional rights instead of making up new ones, but they can also go the other way, and Ken happened to give some examples of the latter situation.

                    7. “Ken, did I get your comment right? Why did you mention two cases where the courts were *not* better than the voters?”

                      They were examples of obvious injustices.

                      I never claimed that the courts don’t make mistakes, but if I’d had my way? Instead of the government making the decision to forcibly removed Japanese-Americans from their homes and hold them in internment camps?

                      I’d have had the government try for a conviction in each individual case! And if the government couldn’t find a charge to charge individual Japanese-Americans with–or nothing they could get a conviction for?

                      Then that’s too bad! I guess the government would have had to find a way to cope–without imprisoning innocent Japanese-Americans.

                      The courts have fail safes built in. It’s a lot harder to deprive someone of their rights in a court of law than it is to deprive someone of their rights through an election.

                      In a court of law, if you want to deprive someone of their rights, you have to respect their right to counsel. Their right to cross examine witnesses. Their right not to be compelled to testify against themselves. Etc., etc.

                      In the court of public opinion? Anything goes. Depriving people of their rights is much easier through elections.

                      And it should be hard. Very hard for juries to legally deprive people of their liberty and their rights.

                2. “The courts were *no better* than the voters re the Japanese-American relocation, and the courts have until recently been *worse* than the people re guns”

                  I didn’t say the courts were perfect. I didn’t say they would always outperform voters in every situation.

                  But I’d rather put my faith in the Constitution and the courts–than the voters.

                  Like I said, I prefer personal autonomy. One of the problem with democracy is that it isn’t democratic enough when it should be.

                  Personal autonomy, where we all get to choose for ourselves no matter what the voters think, is way more democratic than elections.

                  In other words, if our rights are better off when people are free to choose for themselves, then maybe elections are just one expression of that. …but elections are often a mighty ineffective way of protecting our rights–and sometimes democracy is a big threat to people’s rights, like Prop 8.

                  If people come to imagine that holding elections somehow magically justifies taking our rights away, then that’s a major threat to our rights.

                  So, you and your friends got together and decided that my rights are forfeit, and I’m supposed to accept that because, after all, it was a fair election?

                  Sounds like something George Wallace would say while standing in the schoolhouse door.

              2. “If an overwhelming majority voted to ban guns and force Japanese-Americans to report back to the internment camps…”

                If the single federal judge ruled that those things be done, would you accept it? Is absolute deference to the courts your guiding principle, or is it just because you like how this court ruled?

                “…so, yeah, a single judge shooting down a disgraceful law that deprives people of their rights?”

                What “rights”? The whole crux of this controversy is about whether a right to marry someone of the same sex exists at all. People cannot be deprived of a right which has no legitimate existence.

                1. “The whole crux of this controversy is about whether a right to marry someone of the same sex exists at all. People cannot be deprived of a right which has no legitimate existence.”

                  Our rights come into existence in a number of ways–one of which is that we claim them.

                  If you want to say our legal rights ultimately come from the constitution, then the constitution says I have a right to dye my hair any color I want to–and juggle lima bean beanbags in my backyard if I want to.

                  “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

                  —-9th Amendment

                  http://en.wikipedia.org/wiki/N…..ution#Text

                  Do I have a right to get married?

                  Hell yes.

                  The other part of this you’re missing has to do with our rights being inalienable.

                  “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

                  The principle of inalienable rights didn’t go away with the adoption of the constitution. Rather, this is the basis for the use of juries.

                  Inalienable means the government can’t take our rights away. And a jury of our peers means, specifically, that it isn’t the government that decides whether our rights should be taken away–it’s a jury that makes that decision.

                  Am I saying juries are perfect?

                  No.

                  Am I saying that juries have never made mistakes?

                  No.

                  But if you want to take the liberty of gay people away, the right of gay people to get married away in the pursuit of happiness, then you need to charge them with a crime and have them convicted in a court of law.

                  If, because very few juries would convict them of such a “crime”, you decide to hold a referendum to circumvent the rules of evidence, etc.?

                  Am I really supposed to countenance that? The courts may not be perfect arbiters of justice, but if 51% of the voters vote for injustice in a referendum, do you imagine that somehow makes it justice?

              3. I have more faith in the courts to protect my rights than I do in the idiot voters or Congress–that’s for sure.

                Worked for me.

                1. Show me where I said the courts were infallible.

                  And if you want to compare the Dred Scott decision to something, shouldn’t you compare it to states voting on whether to be slave states?

                  We fought a war over Popular Sovereignty–even the neo-confederates agree with that–and the good guys won!

                  Also, the comparison isn’t between the Dred Scott decision on one hand–and referendums making slaves free on the other.

                  It’s the Dred Scott decision on one hand–and referendums making slavery the law of the land on the other.

                  Should Jim Crow have remained the law of land so long as 51% of the voters in the South approved of it?

                  1. Should Jim Crow have remained the law of land so long as 51% of the voters in the South approved of it?

                    Whoa there son! We made Jim Crow cool! Don’t go giving our credit to the unwashed masses!

            3. “So people’s rights should depend on what a single federal judge thinks?”

              If it comes to that, yes. Though usually it will be multiple federal judges making such decisions. It is good that federal judges have forced public schools to integrate, have protected speech and gun rights and it would be great if they would overturn more laws that are currently violating other rights. I can think of very few cases where a judge invalidating a law would be a bad thing.

          2. I follow that you didn’t answer my question.

            You’re assuming sua sponte that govt endorsement of a homosexual coital arrangement is an individual right. I was merely asking you to flesh your reasoning for this proposition out.

            1. “You’re assuming sua sponte that govt endorsement of a homosexual coital arrangement is an individual right.”

              What “endorsement”? I don’t ask the government for “endorsement” of my right to drink a beer at the ball-park.
              What does the government have to do with who’s zoomin’ who?
              Do you ask your local magistrate if it’s OK to screw tonight?

              1. Is the magistrate really hot? Did you get on well together at the ballpark? Did she drink enough beer? Then go for it!

              2. Do you ask your local magistrate if it’s OK to screw tonight?

                No, and neither do the many gay couples in this jurisdiction where gay marriage is not allowed.

                Marriage != sex. As I’m sure many of our posters can unhappily confirm.

            2. I would say that the right is to be treated similarly to people similarly situated. If they wanted to get rid of all marriage laws, that would be fine.
              A same sex couple who wants to settle down and cohabitate and have kids is in essentially the same situation as a more conventional couple who are infertile and should be treated the same by the government. Unless you want to require that married couples be able to produce offspring naturally, the situations are the same. What that treatment consists of is not the issue, only that it be the same.

              1. Ah, but what does it mean to be similarly situated?

                Gay couples are different because of their genders being the same. Is that enough of a difference to make their situation not similar?

                What about polygamists? Are their situations not similar to those of monogamists?

                Or how about people who live 5 miles from the nearest public school and are forced to have their kids take long bus rides. Are they not similarly situated to people who live a block from the school?

                Just because something is describable in a few nice-sounding words does not mean it’s doable in practice.

        2. “Please explain how gaining govt endorsement of your coital arrangements is a necessity for, or even related to, personal autonomy.”

          Who’s asking for “endorsement”? Government ignorance and disinterest in such matters is just fine.

          1. Who’s asking for “endorsement”?

            The people pushing for gay marriage, chief among them the CATO morons claiming it’s the #1 libertarian issue of our times because it gets them laid at cocktail parties.

            1. Tulpa|11.18.11 @ 9:22PM|#
              “Who’s asking for “endorsement”?
              The people pushing for gay marriage,..”

              A claim /= fact.

              1. But it IS a fact. A lack of gay marriage recognition is not stopping anyone from “zoomin” anyone else, and not opening would-be zoomers up to any coercive retaliation by govt if they do so.

                So…you’re looking for endorsement.

    2. Then gay people shouldn’t have to ask me and whatever 51% of the voters for permission to do what they want to do either.

      I agree.

      Not sure what that statement has to do with gay marriage, though; gay marriage is a matter of sanction and endorsement, not permission.

      1. “gay marriage is a matter of sanction and endorsement,”

        Nope.
        Simply ignoring who’s zoomin’ who will do fine.

        1. Good. In that case gay marriage is irrelevant (which is actually my position).

          I merely chafe against the emphasis some libertarians put on it, and their hopping into bed with very bad elements because they’re “good on gay issues”.

          1. “Good. In that case gay marriage is irrelevant (which is actually my position).”

            Agreed. It is irrelevant and the government should treat it as such.

    3. “I find the idea of people’s rights being a popularity contest loathsome.”

      Courts are pretty good for protecting traditional rights, being insulated, elderly guardians of tradition.

      When it comes to new legal rights, not so much, and gay rights are (in the context of the last 1000 years or so of Western history, at least) a new thing. New rights require activists and popular support, generally.

      I mean, how else do you expect new legal rights to be established? Leaving it in the hands of a small group of people with no meaningful accountability to the public seems like a disaster waiting to happen, given that they easily establish “rights” that negate other rights; rights to kill, rights to steal, rights to control and compel and coerce.

      I mean, it’s bad when the 51% oppress the 49%, sure. It’s worse when the 5% oppress the 95%.

      1. Leaving it in the hands of a small group of people with no meaningful accountability to the public seems like a disaster waiting to happen, given that they easily establish “rights” that negate other rights; rights to kill, rights to steal, rights to control and compel and coerce.

        Waiting to happen? Has already happened.

  7. Kevin Drum wisely

    Um, I seriously doubt it.

  8. (P.S. Simply having your “will” subverted doesn’t count as victimization)

    When the purpose of such a subversion is solely?and in this case it is solely?to deny political and legal representation to socially disfavored people (the more religious and less white than average Yes-on-8 voters of California), it’s not anything but that.

    You can be for Walker’s “Shut the fuck up, niggers (of all colors, I mean, of course)!” ruling, and for the state of California’s make-me-do-what-I-want-to-do-anyway acquiescence to it, for whatever White People reasons you want to make up, but what you’re doing is reveling in your own kind’s disproportionate power to wield the state against people you hate.

    So revel.

    Don’t say it “doesn’t count.” It fucking counts, or you wouldn’t bother.

    1. “to deny political and legal representation to socially disfavored people”
      How are those folks denied?

  9. Good. Now the Prop 8 backers will have
    to eventually defend the same weak,
    laughing stock of case that they
    lost in the 9th Circuit. When they
    lose they will still have the right
    to throw a hissy fit.

    1. I just wanted to say I enjoy the wacky formatting here. I read your comment as a Ginsburg-style beat poem.

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