Breaking News - Gay Marriage Ruling

[Daniel2]

Stargazer,

Denying the reality that thousands of same-sex couples can and/or have wed and are legally and lawfully "married" in six--soon to be seven--states in America (and an increasing number of countries around the world) is certainly something you are welcome to do.

That position of denial is one that many Latter-day Saints seem to be adopting on this board, which, again is your right.

As society leaves behind it's reluctance to recognize the marriages of same-sex couples, those who refuse to admit to or recognize such marriages will likely increasingly been seen as out-of-touch with a reality they are perfectly free to religiously disagree with, but likewly going to be viewed as unreasonable in their ability to at least admit that the government has recognized same-sex civil marriage as a civil right.

For a while (perhaps even a few more decades), I predict the LDS Faith and it's more conservative members will view any such ongoing friction between gay couples, their children, friends, family, neighbors, and any government officials as a mark of their "peculiar" status; a continuation of the humbly righteous "in the world, but not of the world" motiff.

Eventually, I believe the current leadership's successors (who will likely begin to recognize the challenges of ongoing resistence to social attitudes of acceptance of same-sex marriage) will begin to pray for further light and understanding, and the Lord will reveal marvelous new truths on the matter that allow the Saints to understand and approach the idea of at least recognizing others' civil marriages in a way that won't cause interference with increasing the four-fold message of the LDS church.

My view,

Daniel2

[frankenstein]

Therre was no right to ssm in California.

I've said it before... that marriage is not a fundamental right. There have been rules and laws governing it from time immemorial, and where there are rules saying that some marriages may not be contracted, then there is no fundamental right to it.

it is now apparent that you are not interested in honest dialogue, and by honest, I mean the common definition of honest. Marriage is fundamental right, that is the law. I see no reason to continue with you

Loving v. Virgina

Marriage is one of the "basic civil rights of man," fundamental ... . Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). To deny this fundamental freedom...

ZABLOCKI v. REDHAIL 434 U.S. 374 (1978)

It is not surprising that the decision to marry has been placed on the same level of importance as decisions relating to procreation, childbirth, child rearing, and family relationships. ... By reaffirming the fundamental character of the right to marry,...

These persons are absolutely prevented from getting married. Many others, able in theory to satisfy the statute's requirements, will be sufficiently burdened by having to do so that they will in effect be coerced into forgoing their right to marry. And even those who can be persuaded to meet the statute's requirements suffer a serious intrusion into their freedom of choice in an area in which we have held such freedom to be fundamental.

deny it all you want, In the United States, marriage is a fundamental right. and deny it all you want, and look like fool, but ssm marriage was a right to all citizens of Ca.

[frankenstein]

As I said, calling apples pears does not make them pears.

and denying truth of matter does not make said truth a falsehood.

[Zeta-Flux]

Cool.

The decision makes sense (to me), for otherwise one would have to assume that all straight judges are biased against gay marriage.

A friend of mine pointed out that you don't have recuse yourself if your a female judge on a sexual harassment case. Nor is it an issue to rule on a civil rights issue while a minority. So I have to agree with the court that the ruling makes sense. While I may not be happy with it, I do have to agree that it was a good ruling under that logic.

You both are missing a key component. A female judge *would* need to recuse herself in a sexual harassment case if she was the abusee in that specific case, or if she was planning on filing an abuse case and her ruling would affect that future case. Otherwise, there is no issue.

The point was not that Judge Walker is gay, or even that he has a long-term gay relationship. The point was that he gave to himself a valuable legal right that he has a particularized interest in using. It appears that the media and the new judge both completely missed this point. To give a similar situation: suppose a black judge who wants to marry a white women is prevented from doing so by his local laws. Suppose further that he is sitting on a trial concerning overturning laws preventing black people from marrying white people. Is he required to recuse himself? No! Not unless the laws he would overturn apply to the area in which he lives. In that case he would have a particular interest which would require recusal.

The whole hullabaloo about the position requiring women to sit out of abortion cases or black judges to sit out of race cases is just the media (and unfortunately, the new judge in the case) completely misunderstanding the legal point that one cannot rule on one's own case. I highly recommend http://www.nationalreview.com/bench-memos/269703/critique-order-denying-motion-vacate-anti-prop-8-judgment-part-1-ed-whelan (and the links therein) for an explanation of what the case really was about (and not what the media portrayed it to be).

[Daniel2]

You both are missing a key component. A female judge *would* need to recuse herself in a sexual harassment case if she was the abusee in that specific case, or if she was planning on filing an abuse case and her ruling would affect that future case. Otherwise, there is no issue.

The point was not that Judge Walker is gay, or even that he has a long-term gay relationship. The point was that he gave to himself a valuable legal right that he has a particularized interest in using. It appears that the media and the new judge both completely missed this point. To give a similar situation: suppose a black judge who wants to marry a white women is prevented from doing so by his local laws. Suppose further that he is sitting on a trial concerning overturning laws preventing black people from marrying white people. Is he required to recuse himself? No! Not unless the laws he would overturn apply to the area in which he lives. In that case he would have a particular interest which would require recusal.

The whole hullabaloo about the position requiring women to sit out of abortion cases or black judges to sit out of race cases is just the media (and unfortunately, the new judge in the case) completely misunderstanding the legal point that one cannot rule on one's own case. I highly recommend http://www.nationalreview.com/bench-memos/269703/critique-order-denying-motion-vacate-anti-prop-8-judgment-part-1-ed-whelan (and the links therein) for an explanation of what the case really was about (and not what the media portrayed it to be).

In my view, the judge didn't "misunderstand" the "legal point" that you're advocating. The case--Prop 8--wasn't Judge Walker's own case--he was neither a plaintiff nor a defendant, and if he had wanted to marry, he could easily have done so given that he and his partner have been together for over ten years, during the period when same-sex marriage was legally recognized in the state of California. Even so, that point is really completely irrelevant, given that ANYONE (short of an asexual human being) would be affected by the decision to marry--whether straight or gay. The words of Judge Ware's ruling on the motion to vacate Judge Walker's decision (as I quoted in post #11 on the first page of this thread) address the specifics of your objections (see bolded portions, below):

Distict Court Denies Motion to Vacate Prop. 8 Ruling

JUNE 14, 2011

Download the full decision >

Quotes of note:

“The sole fact that a federal judge shares the same circumstances or personal characteristics with, other members of the general public, and that the judge could be affected by the outcome of a proceeding in the same way that other members of the general public would be affected, is not a basis for either recusal or disqualification under Section 455(b)(4). Further, under Section 455(a), it is not reasonable to presume that a judge is incapable of making an impartial decision about the constitutionality of a law, solely because, as a citizen, the judge could be affected by the proceedings. Accordingly, the Motion to Vacate Judgment on the sole ground of Judge Walker’s same-sex relationship is DENIED.”

“The fact that a federal judge shares a fundamental characteristic with a litigant, or shares membership in a large association such as a religion, has been categorically rejected by federal courts as a sole basis for requiring a judge to recuse her or himself.”

“Further, such a standard “would come dangerously close to holding that minority judges must disqualify themselves from all major civil rights actions.” Alabama, 828 F.2d at 1542.”

“These cases lead the Court to adopt the following legal conclusion: In a case that could affect the general public based on the circumstances or characteristics of various members of that public, the fact that a federal judge happens to share the same circumstances or characteristic and will only be affected in a similar manner because the judge is a member of the public, is not a basis for disqualifying the judge under Section 455(b)(4).”

“Requiring recusal because a court issued an injunction that could provide some speculative future benefit to the presiding judge solely on the basis of the fact that the judge belongs to the class against whom the unconstitutional law was directed would lead to a Section 455(b)(4) standard that required recusal of minority judges in most, if not all, civil rights cases.”

“The single characteristic that Judge Walker shares with the Plaintiffs, albeit one that might not have been shared with the majority of Californians, gave him no greater interest in a proper decision on the merits than would exist for any other judge or citizen.”

“[D]isqualifying Judge Walker based on an inference that he intended to take advantage of a future legal benefit made available by constitutional protections would result in an unworkable standard for disqualification. Under such a standard, disqualification would be based on assumptions about the amorphous personal feelings of judges in regards to such intimate and shifting matters as future desire to undergo an abortion, to send a child to a particular university or to engage in family planning. So too here, a test inquiring into the presiding judge’s desire to enter into the institution of marriage with a member of the same sex, now or in the future, would require reliance upon similarly elusive factors.”

“Thus, to base a recusal standard on future subjective intent to take advantage of constitutional rights is to create an inadministrable test, frustrating congressional efforts to protect judicial integrity with a clear, mandatory recusal statute.”

“In this context, the “reasonable person” is not someone who is “hypersensitive or unduly suspicious,” but rather a “well-informed, thoughtful observer” who “understand all the relevant facts” and “has examined the record and law.””

“A well-informed, thoughtful observer would recognize that the mere fact that a judge is in a relationship with another person–whether of the same or the opposite sex–does not ipso facto imply that the judge must be so interested in marrying that person that he would be unable to exhibit the impartiality which, it is presumed, all federal judges maintain…To assume otherwise is to engage in speculation about a judge’s motives and desires on the basis of an unsubstantiated suspicion that the judge is personally biased or prejudiced. Mere speculation of that nature does not trigger the recusal requirements of Section 455(a).”

“In fact, the Court observes that Judge Walker, like all judges, had a duty to preserve the integrity of the judiciary. Among other things, this means that if, in an overabundance of caution, he were to have disclosed intimate, but irrelevant, details about his personal life that were not reasonably related to the question of disqualification, he could have set a pernicious precedent. Such a precedent would be detrimental to the integrity of the judiciary, because it would promote, incorrectly, disclosure by judges of highly personal information (e.g., information about a judge’s history of being sexually abused as a child), however irrelevant or time-consuming. Contrary to the intent of Section 455, which was designed to preserve judicial integrity through practices of transparency, it is clear that fostering the practice of commencing a judicial proceeding with an extensive exploration into the history and psyche of the presiding judge would produce the spurious appearance that irrelevant personal information could impact the judge’s decision-making, which would be harmful to the integrity of the courts.”

Download a PDF version

Daniel2

[Zeta-Flux]

In my view, the judge didn't "misunderstand" the "legal point" that you're advocating. The case--Prop 8--wasn't Judge Walker's own case--he was neither a plaintiff nor a defendant, and if he had wanted to marry, he could easily have done so given that he and his partner have been together for over ten years, during the period when same-sex marriage was legally recognized in the state of California. Even so, that point is really completely irrelevant, given that ANYONE (short of an asexual human being) would be affected by the decision to marry--whether straight or gay. The words of Judge Ware's ruling on the motion to vacate Judge Walker's decision (as I quoted in post #11 on the first page of this thread) address the specifics of your objections (see bolded portions, below):

First, your assertion that anyone would be affected is wrong. Those not in same-sex relationships would not have a *present* particularized interest in using the newly bestowed legal right. Those judges who would disclose their relationships but assert they have no present interest in marrying would also not have a present particularized interest. If Walker had limited his ruling to the gay couple in question, nobody besides the gay couple would have had a present particularized interest in employing the newly formed right. (Note: The new judge confuses the fact that everyone always has an interest in constitutional questions, but not everyone has a personal interest [that a reasonable person would view as biasing them] in employing a newly created legal right.)

Second, your assertion that "if he had wanted to marry, he could have done so" applies similarly to the couple in question who challenged Proposition 8. As you well know there are a number of reasons many gay couples did not marry during the very short interim when it was available, but now do want to. (According to the plaintiffs, approximately 2/3 of long-term committed couples now want to marry.) You can't have it both ways.

Third, while Prop. 8 was not initially Judge Walker's own case, his ruling extended beyond the couple in question to bestow legal rights to himself which he presently had a particular interest in exercising. To give an analogy: a trio challenge the laws concerning polygamy. The judge sitting on the case hides the fact he is in a long-term trio. Further, instead of ruling just for the trio in front of him, his ruling applies to himself, so he can now polygamously marry the other two. Are you seriously trying to assert that this doesn't run into problems with the recusal requirement (which, by the way, do not talk about being a "plaintiff or defendent" per se; but are much more broad).

[Zeta-Flux]

Quoting the bolded portion that Daniel also quoted:

“Requiring recusal because a court issued an injunction that could provide some speculative future benefit to the presiding judge solely on the basis of the fact that the judge belongs to the class against whom the unconstitutional law was directed would lead to a Section 455(b)(4) standard that required recusal of minority judges in most, if not all, civil rights cases.”

...

“[D]isqualifying Judge Walker based on an inference that he intended to take advantage of a future legal benefit made available by constitutional protections would result in an unworkable standard for disqualification. Under such a standard, disqualification would be based on assumptions about the amorphous personal feelings of judges in regards to such intimate and shifting matters as future desire to undergo an abortion, to send a child to a particular university or to engage in family planning. So too here, a test inquiring into the presiding judge’s desire to enter into the institution of marriage with a member of the same sex, now or in the future, would require reliance upon similarly elusive factors.”

...

“A well-informed, thoughtful observer would recognize that the mere fact that a judge is in a relationship with another person–whether of the same or the opposite sex–does not ipso facto imply that the judge must be so interested in marrying that person that he would be unable to exhibit the impartiality which, it is presumed, all federal judges maintain…To assume otherwise is to engage in speculation about a judge’s motives and desires on the basis of an unsubstantiated suspicion that the judge is personally biased or prejudiced. Mere speculation of that nature does not trigger the recusal requirements of Section 455(a).”

These are answered much better than I can at: http://www.nationalreview.com/bench-memos/269710/critique-order-denying-motion-vacate-anti-prop-8-judgment-part-2-ed-whelan

Here are the relevant portions:

1. In addressing Prop 8 proponents’ argument that Walker’s long-term same-sex relationship in California meant that he had an actual interest in the case that he was deciding, Ware sets forth this “legal conclusion”:

In a case that could affect the general public based on the circumstances or characteristics of various members of that public, the fact that a federal judge happens to share the same circumstances or characteristic and will only be affected in a similar manner because the judge is a member of the public, is not a basis for disqualifying the judge under Section 455(b)(4). [Punctuation error in original.]

Applying this “legal conclusion” to Walker’s situation, Ware declares: “In particular, in a case involving laws restricting the right of various members of the public to marry, any personal interest that a judge gleans as a member of the public who might marry is too attenuated to warrant recusal.”

Taken on its own terms, Ware’s stated “legal conclusion” would compel the stunning result that a judge need not recuse himself from a case asserting an expanded right to marry even if it is crystal-clear that the judge desires to avail himself of the right that he is deciding whether to create. Under his reasoning, the fact that a judge “gleans” a “personal interest” only “as a member of the public” (rather than, as I understand it, as a party to the very case) somehow dictates the conclusion that his interest is “too attenuated to warrant recusal.”

Ware’s “legal conclusion” makes no sense. I’ve previously offered the hypothetical of a judge who desires to enter into a series of polygamous marriages and who is assigned a case in which plaintiffs are challenging the anti-polygamy laws of the state in which the judge lives. As I stated at the time, legal ethicist Stephen Gillers “acknowledges that the judge’s recusal would be required,” and “I find it difficult to imagine that there would be any legal ethicist anywhere who would maintain otherwise.” But Ware evidently would. Under his “legal conclusion,” the hypothetical case “could affect the general public based on the circumstances or characteristics of various members of that public”—the relevant characteristic of those various members being that they are aspiring polygamists—and the fact that the judge “happens to share” that characteristic “and will only be affected in a similar manner because the judge is a member of the public” (rather than a party to the case) “is not a basis for disqualifying the judge under Section 455(b)(4).”

Now perhaps Ware was just being remarkably sloppy in setting forth and applying his core “legal conclusion.” I will note that in nearby sentences Ware refers to “speculative” benefit. But if Ware’s real reasoning here is that Walker’s benefit from his own ruling was supposedly too speculative to require recusal under section 455(b)(4), it should have been a simple matter for him to say so.

2. Ware then addresses what he calls Prop 8 proponents’ “[a]lternative[]” argument under section 455(b)(4)—in his words, that Walker “should be disqualified because his same-sex relationship gave him a markedly greater interest in a case challenging restrictions on same-sex marriage than the interest held by the general public.” Ware offers two reasons to reject this argument. First, he contends that “it is inconsistent with the general principles of constitutional adjudication to presume that a member of a minority group reaps a greater benefit from application of the substantive protections of our Constitution than would a member of the majority.” Second, he contends that disqualifying Walker “based on an inference that he intended to take advantage of a future legal benefit made available by constitutional protections would result in an unworkable standard for disqualification.”

Ware’s first contention is badly confused. The relevant question under section 455(b)(4) is whether a judge has an “interest that could be substantially affected by the outcome of a proceeding.” It’s a pious-sounding sentiment to maintain, as Ware does, that “we all have an equal stake in a case that challenges the constitutionality of a restriction on a fundamental right,” but it’s manifestly not true as a matter of elementary recusal principles. (Again, Ware’s position would dictate that the polygamist-aspiring judge need not recuse himself from the hypothetical anti-polygamy case.) Ware also asserts:

The single characteristic that Judge Walker shares with the Plaintiffs, albeit one that might not have been shared with the majority of Californians, gave him no greater interest in a proper decision on the merits than would exist for any other judge or citizen.

But the basis for Walker’s recusal wasn’t his “interest in a proper decision on the merits”; it was his interest in a decision, whether or not proper, that struck down Prop 8.

Ware’s second contention is also wrong. To be sure, recusal questions may sometimes be difficult, but there’s nothing “unworkable” about Prop 8 proponents’ standard. The key to workability is full and timely disclosure of relevant facts by the judge facing possible recusal. And if the judge has privacy or other interests in not making such disclosure, the simple alternative is for him to have the case re-assigned to another judge.

3. Ware also interweaves the race card. He nakedly claims, for example, that Prop 8 proponents’ argument under section 455(b)(5) would require “recusal of minority judges in most, if not all, civil rights cases” and would “place an inordinate burden on minority judges.” But that absurd claim merely reveals his woeful failure to recognize how limited their actual argument is (see last half of this post).

...

As the italicized passages show, Ware is blatantly stacking the deck by burying the “might reasonably be questioned standard” of section 455(a) (a judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned”) and replacing it with a much higher standard of incontrovertible proof of inescapable bias. That is not what section 455(a) says, and it is not what section 455(a) has ever been held to mean. As a publication of the Federal Judicial Center (Judicial Disqualification: An Analysis of Federal Law (2d ed. 2010), pp. 17-18) explains, “[w]hether the judge is, in fact, impartial … is not dispositive of disqualification under [section 455(a)]”:

The justification for making perceived partiality a grounds for disqualification is at least twofold. First, regardless of whether judges are partial in fact, public perceptions of partiality can undermine confidence in the courts. Second, disqualifying judges for outward manifestations of what could reasonably be construed as bias obviates making subjective judgment calls about what is actually going on inside a judge’s heart and mind.

I’ll note also that Ware conveniently omits the fact that Walker is in a long-term relationship.

Contra Ware’s statements above, the case for Walker’s disqualification under section 455(a) is that a reasonable person would question whether a judge who is in a long-term same-sex relationship could impartially decide whether to confer on himself a right to marry his partner. In order to question the judge’s impartiality, a reasonable person would not have to conclude that the judge was “necessarily” interested in marrying. And surely evidence that “almost two-thirds of committed same-sex couples in California would get married if permitted to do so” would amply support a reasonable person’s questioning Walker’s impartiality. (Contrary to what Ware implies, that’s evidence that plaintiffs offered, not a mere contention by Prop 8 proponents.) To the extent that it addresses them at all, Ware’s ruling offers no meaningful response to these points.

[Daniel2]

First, your assertion that anyone would be affected is wrong. Those not in same-sex relationships would not have a *present* particularized interest in using the newly bestowed legal right. Those judges who would disclose their relationships but assert they have no present interest in marrying would also not have a present particularized interest. If Walker had limited his ruling to the gay couple in question, nobody besides the gay couple would have had a present particularized interest.

I recognize that you and I disagree on this point, and stand behind my view that "ANYONE (short of an asexual human being) would be affected by the decision to marry--whether straight or gay."

Second, your assertion that "if he had wanted to marry, he could have done so" applies similarly to the couple in question who challenged Proposition 8. As you well know there are a number of reasons many gay couples did not marry during the very short interim when it was available, but now do want to. (According to the plaintiffs, approximately 2/3 of long-term committed couples now want to marry.) You can't have it both ways.

I can't speak for the romantic of the plaintiffs in the case during the window during which Prop 8 was available, and don't know if their relationships were serious enough at that time for them to know whether or not they wanted to marry one another. And it's true that I don't know whether or not Judge Walker and his partner were serious enough to marry, either.

Judge Ware's point (which I agree with) is that Walker's standing is irrelevant, regardless.

Third, while Prop. 8 was not initially Judge Walker's own case, his ruling extended beyond the couple in question to bestow legal rights to himself which he presently had a particular interest in exercising. To give an analogy: a trio challenge the laws concerning polygamy. The judge sitting on the case hides the fact he is in a long-term trio. Further, instead of ruling just for the trio in front of him, his ruling applies to himself, so he can now polygamously marry the other two. Are you seriously trying to assert that this doesn't run into problems with the recusal requirement (which, by the way, do not talk about being a "plaintiff or defendent" per se; but are much more broad).

Yes, I believe that is the jist of Ware's ruling, which I'd agree with.

For all the claims of bias that any have thrown at Judge Walker, I have yet to see anyone explain just exactly which aspects of his ruling are biased or unsubstaniated.

At the end of the day, of course, the motion to vacate really IS totally irrelevant, given that higher courts of appeals will hear the case in it's entirety, likely ending in the SCOTUS. If Judge Walker's reasoning is legally unsound or indefensible, there will be a series of straight appelate judges who will thoroughly examine and discredit any unjust bias he may personally have shown (an allegation which I believe is clearly not the case, based on the detailed rationale of the ruling, itself).

Daniel2

[Zeta-Flux]

I recognize that you and I disagree on this point, and stand behind my view that "ANYONE (short of an asexual human being) would be affected by the decision to marry--whether straight or gay."

We don't disagree on that point. What you don't seem to understand is that this has nothing to do with recusal. Being affected by a ruling does not require recusal. Having a present personal interest in exercising a legal right created by a ruling does. Everyone is affected by a ruling. Not everyone has a present personal interest in using a legal right created by such a ruling.

I can't speak for the romantic of the plaintiffs in the case during the window during which Prop 8 was available, and don't know if their relationships were serious enough at that time for them to know whether or not they wanted to marry one another. And it's true that I don't know whether or not Judge Walker and his partner were serious enough to marry, either.

And that is the point. Does a reasonable person has enough evidence to suppose that Walker might want to have been married?

Judge Ware's point (which I agree with) is that Walker's standing is irrelevant, regardless.

I think by standing you meant recusal obligation. If so, then you can believe what you want, but don't be surprised that a majority of people (including liberals) do not agree with the stance that if Walker did want to get married then he was not required to recuse. In that article by Ed Whelan, he cites one such person who makes it clear that if Walker wanted to get married then he needed to recuse himself.

For all the claims of bias that any have thrown at Judge Walker, I have yet to see anyone explain just exactly which aspects of his ruling are biased or unsubstaniated.

Then you haven't read the actual motion by the Proposition 8 proponents (which Ware just ruled on). You should do so. That said, does one need to explain which parts of a ruling are biased to have a valid motion to vacate? I don't believe that is a legal requirement.

At the end of the day, of course, the motion to vacate really IS totally irrelevant, given that higher courts of appeals will hear the case in it's entirety, likely ending in the SCOTUS. If Judge Walker's reasoning is legally unsound or indefensible, there will be a series of straight appelate judges who will thoroughly examine and discredit any unjust bias he may personally have shown (an allegation which I believe is clearly not the case, based on the detailed rationale of the ruling, itself).

Again, if you had read the motion to vacate, you would know this is incorrect. While it is irrelevant to what the Supreme Court ultimately decides, there are present issues that it has great effect upon. For example, Walker's ruling has already been the basis for other courts using strict scrutiny, contra other precedents (which are not mentioned in Walker's ruling).

Best,

Zeta-Flux

[SeattleGhostWriter]

Here is the point that we all are forgetting.

Sexual sin is sexual sin - no matter what type of sexual sin it is.

When God says not to do something, we have the moral agency to either follow his counsel and not participate in those acts, give into those desires. We must learn how to control those thoughts and desires. If not, we allow our desires to dictate how we live our lives and then force our will and abhorrent behavior on the rest of society that wants to live the moral laws of God because they view God as an oppressive tyrant, and then change God to be more like them.

This is the danger of apostasy. When we negate the laws of God, we negate the blessings inherit to those laws. We, then, suffer the dire consequences that come upon society because of our submission to those desires.

If Homosexuality is not harmful to society - then why haven't the Gay Activists address the problematic result of increased AIDS contraction that comes about within the male population where Male-to-Male sex is practiced? The Center for Disease Control published their findings that of all new AIDS and HIV cases, majority of those cases are a direct result of Male-to-male sexual encounter. Many of these men participate in Male-to-male sexual encounters while they are married. The Gay activist say "if Heterosexuality is the way to go, why is there an increase of divorce among Heterosexual couples?" Well, the reality is that couples divorce because of Sexual infidelity, Financial reasons, or abuse.

Legal match identifies Homosexual behavior within the marital relationship of a husband and wife as Abandonment, cruelty to their spouse, and Adultery.

For instance, a husband who seeks out male to male sexual encounter, not only endangers his relationship with his wife and family, but he is endangering the health of himself and his wife. Furthermore, this husband and father, has an encounter with another man who does not divulge that they are HIV/AIDS positive and that husband and father contracts the Virus. The Husband and father is now infected with the virus. What does he do, he comes home and let us say that he engages in sexual intercourse with his wife. he passes on that viral infection onto his wife. Because of his act of indescretion and moral agency, he has now caused physical, mental, and irreversible damage to himself, his wife, and his children.

Yet, Gay activists disagree with this because they say it is Homophobic and false argumentations. If they were honest with themselves, they realize that they are imposing their lifestyle by forcefeeding it to the majority. And it is done aggressively and militantly. This is not about committing homosexual acts, it is about forcing society to adopt something that is proven to be unhealthy and devestating to society.

[frankenstein]

zeta-flux, did you read the ruling on the motion? You will find numerous instances cited wherein the Judge or family had a personal interest at stake, despite those interests the courts determined in those situations recusal was not required. and as Judge Ware noted, any judge would have some kind of interest in the case, whether it be Judge Smith on the 9th Circuit whose spiritual leader issued an instruction on Prop 8, or some other Judge who just happens to be homosexual.

What I think you and others are missing is the reasonableness issue.

and for the record, no I have not read whealen having read a few other things you posted of his, I see no need to return.

[Jaybear]

Here is the point that we all are forgetting.

Sexual sin is sexual sin - no matter what type of sexual sin it is.

Putting aside the fact that we live in a secular country, do you have any evidence that allowing gay to marry will lead to more homosexual activity?

For instance, a husband who seeks out male to male sexual encounter, not only endangers his relationship with his wife and family, but he is endangering the health of himself and his wife.

Which should lead one to conclude that we should not encourage gay men to enter into heterosexual marriages in hope that they will become straight. What does this have to do with gay marriage?

If they were honest with themselves, they realize that they are imposing their lifestyle by forcefeeding it to the majority.

How so? Honestly. If gays are allowed to marry, how is your life going to change?

I really don't get it this "forcefeeding" argument. Especially since you premise it on gays being dishonest if they don't agree with you.

[Zeta-Flux]

zeta-flux, did you read the ruling on the motion? You will find numerous instances cited wherein the Judge or family had a personal interest at stake, despite those interests the courts determined in those situations recusal was not required. and as Judge Ware noted, any judge would have some kind of interest in the case, whether it be Judge Smith on the 9th Circuit whose spiritual leader issued an instruction on Prop 8, or some other Judge who just happens to be homosexual.

As pointed out by Ed Whelan, and as I pointed out to Daniel, the issue is not whether a case affects us or our family on some level. The issue is whether or not a judge can grant himself a new legal right, which he has a present interest in exercising. Ware apparently missed this point.

What I think you and others are missing is the reasonableness issue.

and for the record, no I have not read whealen having read a few other things you posted of his, I see no need to return.

Well, I hope people make up their own minds instead of letting you poison the well for them. (I also hope they don't ignore data when it is uncomfortable to them.)

As for reasonableness, my impression is that almost everyone I've conversed with on this subject thinks it is reasonable to believe that a judge who wants to marry and then gives himself the right to marry, is biased enough that he should have recused himself. *shrug*

[frankenstein]

As for reasonableness, my impression is that almost everyone I've conversed with on this subject thinks it is reasonable to believe that a judge who wants to marry and then gives himself the right to marry, is biased enough that he should have recused himself. *shrug*

which you might have point IF the proponents for prop 8 had not admitted to Judge Ware that they did not have any evidence the Walker wanted to marry.

So how about focus your energies on the known facts and the facts on record.

[Zeta-Flux]

which you might have point IF the proponents for prop 8 had not admitted to Judge Ware that they did not have any evidence the Walker wanted to marry.

So how about focus your energies on the know facts.

Fact: Walker did not reveal his long term relationship. He has continued to not reveal whether he wants to marry.

Fact: There were a large number of strange procedural issues during the case, many of which required a higher court to overrule. Many of these are listed in the motion to vacate.

Fact: According to the *plaintiffs* about 2/3 of those in long-term relationships would marry if it is legal.

etc..., etc...

Conclusion: Is it reasonable for us to believe that Walker wants to get married?

[frankenstein]

stop moving the goal post.

Here is what you said

"As for reasonableness, my impression is that almost everyone I've conversed with on this subject thinks it is reasonable to believe that a judge who wants to marry and then gives himself the right to marry, is biased enough that he should have recused himself. *shrug*"

Your statement above makes it appear as thought it is a proven fact that Judge Walker wants to marry. Yet, you now admit you have no evidence of his marriage intentions.

So like I asked stick to the known facts and the facts of record. And it is interesting that now you are bringing up the 2/3 stat, which you did not bring up in other thread concerning Walkers recusal. And I am sure you are oh so unbiased and to approach someone and not say "2/3 homosexuals want to get married, by the way Judge Walker is a homosexual, do you think it is reasonable to think he wants to get married... Oh and just in case I didn't tell you, 2/3 homosexuals want to get married."

as to your conclusion, No, it is not reasonable to think that a single person in a long term relationship wants to get married. I hometaught heterosexual couple who have several children ranging in ages from 1 - 16 and they are not married. I also met another couple which had been together for 14 years and were not married. So, no, you and whelan are not being reasonable.

---------

and as for your statement about Walkers precedent in the prop 8 ruling of strict structiny, you seem versed enough on legal to issue to know that every court is unto itself, and it not bound by other courts but the Supreme Court. Also, even the AG and President have stated the level of review should be strict scrutiny.

[Zeta-Flux]

stop moving the goal post.

Here is what you said

"As for reasonableness, my impression is that almost everyone I've conversed with on this subject thinks it is reasonable to believe that a judge who wants to marry and then gives himself the right to marry, is biased enough that he should have recused himself. *shrug*"

Your statement above makes it appear as thought it is a proven fact that Judge Walker wants to marry. Yet, you now admit you have no evidence of his marriage intentions.

Thank you for pointing out that discrepancy. My original sentence should have the word "probably" in front of "wants to marry". Sorry for my oversight.

So like I asked stick to the known facts and the facts of record. And it is interesting that now you are bringing up the 2/3 stat, which you did not bring up in other thread concerning Walkers recusal. And I am sure you are oh so unbiased and to approach someone and not say "2/3 homosexuals want to get married, by the way Judge Walker is a homosexual, do you think it is reasonable to think he wants to get married... Oh and just in case I didn't tell you, 2/3 homosexuals want to get married."

I don't understand you. It isn't my stat, in fact it isn't a statistic at all. It is what the plaintiffs asserted. The *plaintiffs*. And it is a fact they asserted this, which was what I said.

as to your conclusion, No, it is not reasonable to think that a single person in a long term relationship wants to get married. I hometaught heterosexual couple who have several children ranging in ages from 1 - 16 and they are not married. I also met another couple which had been together for 14 years and were not married. So, no, you and whelan are not being reasonable.

You do realize that you are committing a fallacy here? Just because one or two couples you know don't want to do it doesn't mean that a majority of them don't. (Of course, there are other reasons to reasonably believe he, personally, wants to get married, from evidence in his own case, which is presented in the motion to vacate.)

and as for your statement about Walkers precedent in the prop 8 ruling of strict structiny, you seem versed enough on legal to issue to know that every court is unto itself, and it not bound by other courts but the Supreme Court. Also, even the AG and President have stated the level of review should be strict scrutiny.

Actually, there are three levels of courts. In the case in hand, there was precedent at the level *above* Walker, in the 9th circuit court. And there is precedent in the Supreme Court by the way. ;-)

The AG and President are not (fortunately) authorities in this matter. That is up to the courts to decide. Currently, the precedent is that strict scrutiny should not apply.

[Stargazer]

Stargazer,

Denying the reality that thousands of same-sex couples can and/or have wed and are legally and lawfully "married" in six--soon to be seven--states in America (and an increasing number of countries around the world) is certainly something you are welcome to do.

That position of denial is one that many Latter-day Saints seem to be adopting on this board, which, again is your right.

As society leaves behind it's reluctance to recognize the marriages of same-sex couples, those who refuse to admit to or recognize such marriages will likely increasingly been seen as out-of-touch with a reality they are perfectly free to religiously disagree with, but likewly going to be viewed as unreasonable in their ability to at least admit that the government has recognized same-sex civil marriage as a civil right.

For a while (perhaps even a few more decades), I predict the LDS Faith and it's more conservative members will view any such ongoing friction between gay couples, their children, friends, family, neighbors, and any government officials as a mark of their "peculiar" status; a continuation of the humbly righteous "in the world, but not of the world" motiff.

Eventually, I believe the current leadership's successors (who will likely begin to recognize the challenges of ongoing resistence to social attitudes of acceptance of same-sex marriage) will begin to pray for further light and understanding, and the Lord will reveal marvelous new truths on the matter that allow the Saints to understand and approach the idea of at least recognizing others' civil marriages in a way that won't cause interference with increasing the four-fold message of the LDS church.

My view,

Daniel2

I'm not denying that there may be "marriages" contracted between same-sex individuals. I'm not denying that such unions may become eventually universally acknowledged in the culture as "marriages". I'm not denying that some or all states may eventually recognize them as legal marriages.

I'm denying that such unions are actually marriages. In other words, I am denying that apples can become pears by legislative or judicial fiat, or the eventual acceptance of the general population. Call them what you will, they are not marriages. That being said, as far as recognizing gay civil unions or gay marriages is concerned, I don't feel inclined to interfere with such relationships, nor do I regard it as appropriate that others do so, outside of the perfectly legitimate civil contest of legislating whether or not such relationships can or ought to be regarded as marriages.

Whatever the Church does in relation to these unions if they become legal, I am sure it will be in accordance with divine guidance.

[california boy]

You both are missing a key component. A female judge *would* need to recuse herself in a sexual harassment case if she was the abusee in that specific case, or if she was planning on filing an abuse case and her ruling would affect that future case. Otherwise, there is no issue.

The point was not that Judge Walker is gay, or even that he has a long-term gay relationship. The point was that he gave to himself a valuable legal right that he has a particularized interest in using. It appears that the media and the new judge both completely missed this point. To give a similar situation: suppose a black judge who wants to marry a white women is prevented from doing so by his local laws. Suppose further that he is sitting on a trial concerning overturning laws preventing black people from marrying white people. Is he required to recuse himself? No! Not unless the laws he would overturn apply to the area in which he lives. In that case he would have a particular interest which would require recusal.

The whole hullabaloo about the position requiring women to sit out of abortion cases or black judges to sit out of race cases is just the media (and unfortunately, the new judge in the case) completely misunderstanding the legal point that one cannot rule on one's own case. I highly recommend http://www.nationalreview.com/bench-memos/269703/critique-order-denying-motion-vacate-anti-prop-8-judgment-part-1-ed-whelan (and the links therein) for an explanation of what the case really was about (and not what the media portrayed it to be).

Well I have to say most judges in this country would strongly disagree with your position. This judge appointed by George W. Bush seemed to totally dismiss your anaysis that the prop 8 people tried to use. It wasn't even something he had to think long and hard about. He issued his ruling within 24 hours. Your position is not one shared by most legal experts in this country. Few legal experts thought this motion had any chance of being granted, even by a conservative Republican judge. His reasons for his ruling are quite clear and don't seem to leave any room open for your legal analysis of the issue.

[Stargazer]

it is now apparent that you are not interested in honest dialogue, and by honest, I mean the common definition of honest. Marriage is fundamental right, that is the law. I see no reason to continue with you

And yet you do...

With respect to the "common definition of honest", perhaps you will do me the favor of giving me the "common definition" that is to be applied here with respect to what I have written? Or do you have some contrived term of art in mind, one that I am not familiar with? I do believe I have given you my honest understanding of how the world works, my honest opinion of how things ought to be, and my honest assessment as to the rectitude of so-called "gay marriage" and what I believe are its very unsteady legal underpinnings. You are obviously free to disagree with me, as indeed you do, but I will not stand by meekly while you impugn my honesty. So, please, demonstrate my lie. And note carefully, by "lie" I don't mean "mistake". I mean "knowing falsehood" or "attempt to willfully deceive."

I'll be waiting.

Just incidentally, I don't know if you are aware of it or not, but your style of discourse is extremely overbearing and combative. You rarely listen to what others say, and frequently argue right past what they actually said until it becomes impossible to figure out where you're coming from. I won't try to give you some examples, because any time this has been pointed out to you, you refuse to consider it. In fact, I'm probably wasting my time writing this, but there it is.

Loving v. Virgina

Marriage is one of the "basic civil rights of man," fundamental ... . Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). To deny this fundamental freedom...

ZABLOCKI v. REDHAIL 434 U.S. 374 (1978)

It is not surprising that the decision to marry has been placed on the same level of importance as decisions relating to procreation, childbirth, child rearing, and family relationships. ... By reaffirming the fundamental character of the right to marry,...

These persons are absolutely prevented from getting married. Many others, able in theory to satisfy the statute's requirements, will be sufficiently burdened by having to do so that they will in effect be coerced into forgoing their right to marry. And even those who can be persuaded to meet the statute's requirements suffer a serious intrusion into their freedom of choice in an area in which we have held such freedom to be fundamental.

OK, so the courts have said that the right to marry is fundamental. Now that you've brought some cases to bear upon your point, I'll concede that I may have been using the word "fundamental" incorrectly. Point to frankenstein. Take a bow, sir!

The word I should have been wielding in this little contest was not "fundamental", but "inalienable." Given that this isn't the word being tossed around, however, I'm going to have to throw a change-up. And I'm going to have to go into lecture mode. Professor Stargazer will now attempt to put everyone to sleep. Yawn.

What I am trying to convey is the notion that the right to marry is not inalienable.

An inalienable right is something that may not be abrogated except through due process and in consequence of crime, and exists without significant prior restraint. A fundamental right, on the other hand, is a right which is conditional, but if the conditions with which it is bound are complied with, may be freely exercised. Can we agree to allow this distinction?

Here are the classic inalienable rights.

1. The right to life. This is in fact the absolute most fundamental right, in the sense that it is most basic and is the one from which all others flow. Without it, no other rights can be recognized -- they all grow out of this one. A person possesses this right from the moment of birth, and it can never be taken from him or her until natural death. It can only be abrogated through the operation of due process of law as a result of the commission of crime of sufficient heinousness. The right is only very very rarely taken away, and only in the most extreme of cases.

2. The right of liberty. This right grows out of the right to life, for without life there can be no liberty. With this right, a person may freely travel, act for himself, and live his life as he sees fit. But it is here where the first inkling of prior restraint sets in. A person may exercise this right only so long as the exercise of it does not impinge unjustly upon the right to life and liberty of another person. Beyond that point he may not exercise it, and if he does, he places himself in danger of having his liberty taken from him, either temporarily or permanently, depending upon the nature of the violation of another's life and liberty.

3. The right to own and control property (Jefferson referred to the "pursuit of happiness", but this appears bound up with the "right to liberty", and his model in any case was George Mason of Virginia's declaration of liberty, which distinguished a right to own and control property from the pursuit of happiness). As I see it, this right grows out of the right of liberty; without liberty, the right to property is severely restrained. In a sense, the right of property may be said to grow out of both the rights of life and liberty together, for the first property that one may own and control is one's own self. Like the right to liberty, the right to property is subject to some prior restraint, in that one may not interfere with the rights of property held by another person. In other words, one may not steal or damage another's property, and if one does so, then property may lawfully be taken from one in compensation and in punishment. If one's liberty is taken from one, then this too places a severe restriction upon one's right to own and control property (e.g. in prison one doesn't even own the clothes upon one's back -- it is the state's).

All other rights are derivative of these three. Very few of other rights enjoy the relative lack of prior restraint that these three do. The right to free speech, for example, is restrained in prior by the obligation not to commit libel or suchlike. Or shouting "Fire!" in a gathering (where there is no fire).

Marriage, by this definition, is not an inalienable right. This is because marriage is subject to a large degree of prior restraint. I don't know about your state, but in mine (Washington) there are several significant restrictions, all of which have been upheld by the courts:

RCW 26.04.020 Prohibited marriages.

(1) Marriages in the following cases are prohibited:

(a) When either party thereto has a wife or husband living at the time of such marriage;

(b) When the husband and wife are nearer of kin to each other than second cousins, whether of the whole or half blood computing by the rules of the civil law; or

© When the parties are persons other than a male and a female.

(2) It is unlawful for any man to marry his father's sister, mother's sister, daughter, sister, son's daughter, daughter's daughter, brother's daughter or sister's daughter; it is unlawful for any woman to marry her father's brother, mother's brother, son, brother, son's son, daughter's son, brother's son or sister's son.

(3) A marriage between two persons that is recognized as valid in another jurisdiction is valid in this state only if the marriage is not prohibited or made unlawful under subsection (1)(a), (1)©, or (2) of this section.

[1998 c 1 § 4; 1927 c 189 § 1; Code 1881 § 949; 1866 p 81 § 2; 1854 p 96 § 115; RRS § 8438.]

Similar laws exist in other states (and other countries). If there were an inalienable right to marriage, then this statute prohibiting certain marriages would be unconstitutional. The law has been found constitutional, however, so it is not inalienable, since you can't simply marry anyone you want to.

deny it all you want, In the United States, marriage is a fundamental right. and deny it all you want, and look like fool, but ssm marriage was a right to all citizens of Ca.

As I wrote above, OK, you win. It's a fundamental right.

But I am not a great fool (apologies to Mordecai!), and SSM was not and is not a right to all citizens of California.

Are you an attorney? I've thought that some posters have suggested you were, but regardless, you should be either familiar with, or be familiarized with Marbury v. Madison. A law which conflicts with the Constitution is not law and is void from its inception. Proposition 8 added a new provision, Section 7.5 of the Declaration of Rights, to the California Constitution, which provides that "only marriage between a man and a woman is valid or recognized in California."

Those same-sex marriages entered into before November 5, 2008 were grandfathered in, and were not abrograted, but according to Marbury v. Madison, "a law repugnant to the constitution is void" Marbury v. Madison, 1 Cranch (5 U.S.) 137 (1803). This means that no right existed, retroactive to the decision that created the right in the first place.

By the way, just in case you might be thinking otherwise, the cases you cite, Zablocki v. Redhail and Loving v. Virginia, dealt with heterosexual marriage, and did not establish any right to homosexual marriage. Not that you were arguing that way; just wanted to state it for the record, as it were.

[Zeta-Flux]

Well I have to say most judges in this country would strongly disagree with your position. This judge appointed by George W. Bush seemed to totally dismiss your anaysis that the prop 8 people tried to use. It wasn't even something he had to think long and hard about. He issued his ruling within 24 hours. Your position is not one shared by most legal experts in this country. Few legal experts thought this motion had any chance of being granted, even by a conservative Republican judge. His reasons for his ruling are quite clear and don't seem to leave any room open for your legal analysis of the issue.

california boy,

I didn't think this motion had much of a chance of being granted either, and don't think I ever said otherwise. I think Ware's reasons for his ruling are quite clear, and don't think I ever said otherwise. But you saying that they "don't seem to leave any room open for your legal analysis" sort of begs the question, don't you think? If they answer the questions I raised (or Ed Whelan raised) then point that out. Merely asserting your belief that most judges disagree with my position, or that his reasoning leaves no room for the issues I raised, is just that. Mere assertion.

I would love to see evidence that most judges agree with Ware that, even in the event that Walker stated publicly that he wants to marry his partner, there would be no grounds for recusal.

[Zeta-Flux]

Stargazer,

You might find it instructive to read the paragraphs surrounding the portions of those rulings that Frankenstein quoted from. Pay particular attention to the parts where the rulings explain *why* marriage is a fundamental right.

[Stargazer]

Stargazer,

You might find it instructive to read the paragraphs surrounding the portions of those rulings that Frankenstein quoted from. Pay particular attention to the parts where the rulings explain *why* marriage is a fundamental right.

Yeah, I did see that, and I might have pointed it out to him, but I don't think he's tracking well enough on this issue to see the irony -- or at least to admit to seeing the irony.

[california boy]

california boy,

I didn't think this motion had much of a chance of being granted either, and don't think I ever said otherwise. I think Ware's reasons for his ruling are quite clear, and don't think I ever said otherwise. But you saying that they "don't seem to leave any room open for your legal analysis" sort of begs the question, don't you think? If they answer the questions I raised (or Ed Whelan raised) then point that out. Merely asserting your belief that most judges disagree with my position, or that his reasoning leaves no room for the issues I raised, is just that. Mere assertion.

I would love to see evidence that most judges agree with Ware that, even in the event that Walker stated publicly that he wants to marry his partner, there would be no grounds for recusal.

From what I have read on the subject of reclusion, courts have ruled over and over again about this kind of issue, and almost always have stated that it is reasonable that a judge can rule effectively even when there may be a possibility that he in some way might be affected. To make this an exception to that long history of rulings seems unlikely.

I guess I also feel the ruling that Judge Walker made was pretty strong with lots of legal precedence backing up his logical conclusion. Few people feel the prop 8 lawyers had much of a case to present on this issue. To try to recluse a judge seemed like a desperate attempt to throw out what was a pretty strong case against them. I am sure the prop 8 lawyers are not looking forward to continuing this case to the Supreme Court. What do they really have to argue that would make this case win in that high court? I personally think you nave to have something stronger to argue more than "We have always done it this way"

In my opinion and others, the whole recluse thing was just a stall tactic to delay the case even further.

Personally I hope that the prop 8 lawyers do get standing in the case and it proceeds to the supreme court. It is time to put this divisive issue behind us.

[Mordecai]

But I am not a great fool (apologies to Mordecai!), and SSM was not and is not a right to all citizens of California.

No apologies necessary. The Princess Bride deserves to be the most quoted movie of all time .