Voters Can Defend Prop 8

[Daniel2]

This is factually incorrect. Indeed, if Walker was straight and had a long-term partner, and was ruling in a case which extended his right to marry said partner when that right was not present before, he would be in precisely the same situation of needing to disclose this information. And this is not just my impression of the proponents' argument, but they explicitly say this (and other things) in their brief.

Both you and the article incorrectly represent the arguments put forth by the proponents. Further, even Judge Ware recognized this fact. In the future, I would recommend that if you want to criticize someone's position, you should make sure you know what that position is, possibly by reading what they actually wrote about it instead of what others write.

And this is where our disagreements could go around in circles forever, Zeta. I have been involved with enough lawyers in my own legal issues to know that just because the proponent's "explicitly" phrazed it differently (using language that reflects the particular "spin" you're also agreeing with) in their argument doesn't mean that a reasonable mind couldn't arrive at the conclusion I've arrived at. It probably isn't worth our time to argue that point, as I think we both clearly understand the other's position, yet remain convinced of our respective positions.

Daniel2

[Zeta-Flux]

And this is where our disagreements could go around in circles forever, Zeta. I have been involved with enough lawyers in my own legal issues to know that just because the proponent's "explicitly" phrazed it differently (using language that reflects the particular "spin" you're also agreeing with) in their argument doesn't mean that a reasonable mind couldn't arrive at the conclusion I've arrived at. It probably isn't worth our time to argue that point, as I think we both clearly understand the other's position, yet remain convinced of our respective positions.

First, our positions don't go around in circles because I explicitly gave a counter-example to your claim. You claimed that the person must be gay for the argument to apply, and that the argument wouldn't apply to a straight person. I gave an example, explicitly showing you that whether the person was gay or straight had nothing to do with the argument. It has everything to do with a person bestowing upon themselves a right they don't presently hold, but which they presently want to exercise due to particularized circumstances in their lives (which they don't disclose).

Second, you seem to insinuate that while the specific wording of the proponents' argument avoids making reference to Walker's homosexuality, still it somehow implies that Walker's homosexuality is a key issue to their argument. If so, present your reasons for thinking that the argument implicitly brings homosexuality into the picture. [And don't forget the example I just gave, where homosexuality is irrelevant.]

In other words, I have to disagree and say that I do not understand your position if you think it allows you to rationally both understand the proponents' arguments and still think they try to challenge Walker on his homosexuality. Please do elaborate. Explain why you think my counter-example was wrong, if you do think it was wrong. If not, and it changed your perception of the proponents' argument, explain why you still think it condemns Walker for his homosexuality.

[california boy]

I think Daniel is pointing out that you are taking the defendants position as being the correct point of view. Daniel is just saying that there is an apposing argument and position. If he quoted from the plaintiffs brief, he too would have something to support his argument. And there is where the circle lies.

Personally I feel it is pointless to argue a legal case on a Mormon web site. I was very much interested in your views, which I asked for and you kindly spent the time explaining. It doesn't mean that I want to present the other side of the argument despite Storm Riders assertion. Who wins or looses this argument will be decided by the courts not by a blog posting.

[Zeta-Flux]

I think Daniel is pointing out that you are taking the defendants position as being the correct point of view.

Actually, if you look back, I already said that I don't know that their argument will hold up. However, I do think it is important to at least get their argument right. I've tried to be fair to both sides in that respect.

Daniel is just saying that there is an apposing argument and position. If he quoted from the plaintiffs brief, he too would have something to support his argument. And there is where the circle lies.

Then let him do so, and let's progress the discussion. Until we actually have the discussion, and come to terms on what we do and do not agree upon (or do end in a circle), the claim that we will end up in a circle is quite premature and just an excuse not to delve into the issues.

Let me ask you two questions: Should a judge sit on her own case? If someone's answer to the first question is yes, does that mean the person's answer has anything to do with homosexuality?

[california boy]

Actually, if you look back, I already said that I don't know that their argument will hold up. However, I do think it is important to at least get their argument right. I've tried to be fair to both sides in that respect.

Let me ask you two questions: Should a judge sit on her own case? If someone's answer to the first question is yes, does that mean the person's answer has anything to do with homosexuality?

Actually I already answered this question

I guess here I am in agreement with the judge. I think Judge Ware is fully aware with disclosure laws. The criteria seems to be that reclusion is in place for much more narrow benefits to the judge. For example personal financial gain or a case where his family member is involved. If his ruling only affected a handful of marriages and his were one of those relationships, then there would be an argument that he should disclose or recluse himself. But when it is a ruling that is so broad such as abortion issues for a woman, or race issues for a race, or in this case a ruling for all gay Americans, then reclusion or disclosure has not been required. It is the same standard for reclusion that the Mormon judge serving on the 9th circuit does not have to recluse himself just because he is a Mormon and believes he should follow the counsel of the prophet. Or a practicing catholic can rule on abortion cases. If your narrow definition of reclusion was practiced, then half of the members of the Supreme Court would have to recluse themselves on the prop 8 trial because they are Catholic and have a vested interest in protecting the Catholic position.

You presented the defendents view on the matter. We disagree. I appreciate hearing your side of the argument. It is why I asked the questions. I don't expect to change your opinion. You simply feel Judge Ware got it wrong and agree with the defendants arguments. Personally I am glad I have a judge in agreement with my feelings. You are hoping that the 9th circuit will overrule the decision. We will have to wait and see how they rule. What is there to discuss?

[Zeta-Flux]

Actually I already answered this question

If I understand your answer to the first question, it is that it depends on the scope of the benefit the judge receives from the ruling. If they are broad enough, then yes a judge can rule on them. If they are narrow, then no. If I got this right, we actually agree on this much at least. I too think that the scope of the ruling has something to do with the answer to the question.

Some measures which judges use to see if the scope is too large are the following: (1) is the right contingent on a future state or decision, or does it currently affect the judge, (2) are there aspects of the ruling that affect only a small segment of the population, and does the judge belong to that segment currently, (3) what qualities does the judge share with the parties?

There are other measures and, as I am not a lawyer, these are just sketches of the wordings they use. I understand and accept that you can rationally and reasonably disagree with me on these issues as they relate to Walker. I understand and accept that you may not want to talk about these issues on this board.

Now, can you answer the second question? If someone's answer to the first question is yes (or no, or a mix as yours is), does that mean the person's answer has anything to do with homosexuality?

You presented the defendents view on the matter. We disagree.

I understood that our disagreement was with respect to whether Judge Ware's ruling will stand (you apparently think it might, while I think that it will not but that they still may rule against the proponents for other reasons), and not on whether my presentation of the defendents' view on the matter were accurate. If I misunderstood, please state where you think my presentation of their views has been inaccurate.

Personally I am glad I have a judge in agreement with my feelings. You are hoping that the 9th circuit will overrule the decision.

No, I'm hoping that the 9th circuit will rule according to law. I try to understand these issues, but recognize I'm an amateur and that there may be reasons (which I'll come to understand after the decisions) which will convince me of the rightness of the ruling.

What is there to discuss?

You seemed to be defending Daniel2's mischaracterization of the proponents' arguments. I am hoping that we can move the discussion forward so that either you agree it was a mischaracterization (and stop trying to defend it), I change my mind and agree it is an appropriate characterization, or we come to that circle where neither of us can even agree to disagree. The questions above will, hopefully, help us slowly build up some common ground.

[california boy]

Thanks for your response. It seems that both of us understand each others position. Since the issue of reclusion is always in a bit of a subjective gray area, I actually think that the merits of the case will probably be more important to how they rule than the arguments from both sides on the issue of reclusion. If there is a strong case that the judge stretched the case law so that he could personally benefit from the ruling then I feel the 9th district will be more likely to rule against Judge Walker. However, if they look at the case and see little prejudice in his evaluation of the evidence then I think they will probably vote in his favor. But that is just my take on the issue.

Now, can you answer the second question? If someone's answer to the first question is yes (or no, or a mix as yours is), does that mean the person's answer has anything to do with homosexuality?

From reading the court documents, I feel that the defendants knew they could not be granted a dismissal of the opinion just because Judge Walker was gay. That clearly is not enough to prejudice the case. Since Judge Walker was in a relationship that MIGHT want to take advantage of gay marriage, then they pushed that part of their argument to make their case stronger. It is simply pushing the strongest point they have to win the case and is completely understandable. I think if they had been able to show specifically in the court documents instances where Judge Walker used unreasonable legal tatics to prove he was prejudicial they would have done that. Cases are won and lost by evidence not by speculation. The fact that they did not include any evidence of bias in Judge Walker's decision may possible weaken their case significantly. I personally don't think it is a particularly strong position given that gay marriage was legal just months before, but evidently you think that fact has no relevance. Perhaps it doesn't.

I think what Daniel was saying is that the defendants are using the fact that Judge Walker is gay to make their case that he must want to get married so therefore would benefit from his ruling. If he wasn't gay, it would not have been an issue. So while the defendants don't base their case solely on that fact that Judge Walker is gay, they certainly use that point to best support their reasons for reclusion.

It is pretty apparent that virtually every judge uses his life experience and personal beliefs to make a judgement on cases brought before him. It is why pretty much everyone in the country could accurately predict how each individual supreme court justice will rule on gay marriage. The only justice people are not sure on how he will rule is Kennedy. Judge Walker understands this point just as well as anyone else. I am sure it is why he quoted heavily from Kennedy's brief on Lawrence vs Texas in his judgement.

[Zeta-Flux]

Thanks for your response. It seems that both of us understand each others position. Since the issue of reclusion is always in a bit of a subjective gray area, I actually think that the merits of the case will probably be more important to how they rule than the arguments from both sides on the issue of reclusion. If there is a strong case that the judge stretched the case law so that he could personally benefit from the ruling then I feel the 9th district will be more likely to rule against Judge Walker. However, if they look at the case and see little prejudice in his evaluation of the evidence then I think they will probably vote in his favor. But that is just my take on the issue.

I basically agree with all of this.

From reading the court documents, I feel that the defendants knew they could not be granted a dismissal of the opinion just because Judge Walker was gay. That clearly is not enough to prejudice the case.

Agreed. I would go further and say that the proponents in fact expressly denied the validity of such an argument for recusal, and just in their last brief again explicitly denied its validity.

Since Judge Walker was in a relationship that MIGHT want to take advantage of gay marriage, then they pushed that part of their argument to make their case stronger. It is simply pushing the strongest point they have to win the case and is completely understandable.

Exactly so. Still no disagreement.

I think if they had been able to show specifically in the court documents instances where Judge Walker used unreasonable legal tatics to prove he was prejudicial they would have done that. Cases are won and lost by evidence not by speculation. The fact that they did not include any evidence of bias in Judge Walker's decision may possible weaken their case significantly. I personally don't think it is a particularly strong position given that gay marriage was legal just months before, but evidently you think that fact has no relevance. Perhaps it doesn't.

Here you misrepresent the facts. The proponents do present specific evidence of prejudice. For one specific example, the entire episode with Walker having to be overruled by the Supreme Court in video-taping the proceedings, and Walker eventually breaking his own seal on the videos.

You also are wrong about your assertion that I think the proximity of the previous right to gay marriage is unimportant.

But let's not get sidetracked. I think we can agree that these are minor issues at this point, at least with regards to Daniel2's assertions.

I think what Daniel was saying is that the defendants are using the fact that Judge Walker is gay to make their case that he must want to get married so therefore would benefit from his ruling. If he wasn't gay, it would not have been an issue. So while the defendants don't base their case solely on that fact that Judge Walker is gay, they certainly use that point to best support their reasons for reclusion.

But the facts do not bear up that assertion. The defendants are not using the fact that Judge Walker is gay to make their case that he must want to get married. It isn't an issue of this being the sole fact they rely on, it is an issue of this not being a fact they rely on at all.

Rather, their argument is as follows: Walker is in a long term relationship, which the current laws prevent from being recognized as a marriage. Walker failed to disclose whether or not, if the law was reversed, he currently would like to marry his partner. In fact, he failed to disclose he had such a long-term partner at all. Thus, he hid the fact that he might stand in the identical situation as the plaintiffs. This, along with other abnormal circumstances throughout the trial, leads one to reasonably question his partiality.

That is their argument. It has nothing to do with the fact that Walker is gay, except as that relates to the specifics of the case. The argument would apply just as equally to a straight judge, in an alternate situation.

When you say "If he wasn't gay, it would not have been an issue." that says just as much as "If he wasn't sexually active, it would not have been an issue." These are true statements, necessary for Walker to have formed the specific long-term relationship he has formed to be similarly situated to the plaintiffs, but not sufficient in any sense for implying they are the reason the proponents question his partiality.

[california boy]

Here you misrepresent the facts. The proponents do present specific evidence of prejudice. For one specific example, the entire episode with Walker having to be overruled by the Supreme Court in video-taping the proceedings, and Walker eventually breaking his own seal on the videos.

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I think the issue of appropriate use of the videos has nothing to do with the merits of the case. It is an entirely different legal issue all together in my opinion.

Rather, their argument is as follows: Walker is in a long term relationship, which the current laws prevent from being recognized as a marriage. Walker failed to disclose whether or not, if the law was reversed, he currently would like to marry his partner. In fact, he failed to disclose he had such a long-term partner at all. Thus, he hid the fact that he might stand in the identical situation as the plaintiffs. This, along with other abnormal circumstances throughout the trial, leads one to reasonably question his partiality.

So if Judge Walker was gay but not in a long term relationship, are you saying that the defendants would not have brought up the reclusion issue??</div>

[Pahoran]

So if Judge Walker was gay but not in a long term relationship, are you saying that the defendants would not have brought up the reclusion issue??

What the parties may or may not have done if the circumstances were different is another matter; but if indeed Judge Walker was likely to be personally impacted by a ruling he made, then he probably ought not to have made it.

The question of whether he might be influenced by the prospect of making himself unpopular in the San Francisco bathhouses may also be relevant, but I'm not aware that anyone has raised it.

Regards,

Pahoran

[california boy]

What the parties may or may not have done if the circumstances were different is another matter; but if indeed Judge Walker was likely to be personally impacted by a ruling he made, then he probably ought not to have made it.

The question of whether he might be influenced by the prospect of making himself unpopular in the San Francisco bathhouses may also be relevant, but I'm not aware that anyone has raised it.

Regards,

Pahoran

What the parties may or may not have done if the circumstances were different is another matter; but if indeed Judge Walker was likely to be personally impacted by a ruling he made, then he probably ought not to have made it.

The question of whether he might be influenced by the prospect of making himself unpopular in the San Francisco bathhouses may also be relevant, but I'm not aware that anyone has raised it.

Regards,

Pahoran

Pahoran, perhaps you read through the posts Zetta and I have been having. Did you notice there were no insults or degrading language in any of them? Did you notice how both sides could present their different points of view respectfully? Just wondering why you wanted to start putting that element into the discussion by the snide remark about bath houses in San Francisco. Grow up, and start treating people with a bit more respect.

[Zeta-Flux]

I think the issue of appropriate use of the videos has nothing to do with the merits of the case. It is an entirely different legal issue all together in my opinion.

This is one point I think we will have to agree to disagree on (at least, regarding the merits of the recusal/disclosure issue). I believe that when a judge must be overruled by the Supreme Court, then gives his word and then breaks his word, that goes to the heart of whether he was impartial. At any rate, I only brought it up to correct your mistaken belief that the proponents hadn't presented other evidence of partiality on Walker's part.

So if Judge Walker was gay but not in a long term relationship, are you saying that the defendants would not have brought up the reclusion issue??

That is exactly what the proponents have said. It was only after the trial finished and Walker revealed he was in a long-term relationship that they brought the recusal/disclosure issue forward. Their recusal motion stands or falls on whether or not his long-term relationship puts him in a position where one can question his partiality. Ware recognized this fact as well; rejecting the mischaracterization that it was about his homosexuality.

I take it from your double question mark however, that you may be implicitly questioning the sincerity of this claim on the proponents' part. If so, that is another question--one which news articles should not take it upon themselves to decide, nor should it be confounded with explanations of what the proponents themselves claim/argue. [Personally, I'm not a fan of the "homophobe" label for any action taken against someone who happens to profess homosexuality. I prefer to give the benefit of the doubt on questions of sincerity.]

[california boy]

The whole video tape issue certainly shows that Judge Walker aggressively wants the public to see the trial. It certainly could imply that he is a bit of an egotistic showoff . But it certainly would not be the first high profile trial judge that wanted a little grandstanding. Why do you feel the video taping of the trial points to whether he was impartial. I don't see the connection. Perhaps that is why it had relevant to Judge Walker's decision to not recluse himself based on a 10 year relationship, It will be interesting to see how the district courts rule on this issue.

I take it from your double question mark however, that you may be implicitly questioning the sincerity of this claim on the proponents' part. If so, that is another question--one which news articles should not take it upon themselves to decide, nor should it be confounded with explanations of what the proponents themselves claim/argue. [Personally, I'm not a fan of the "homophobe" label for any action taken against someone who happens to profess homosexuality. I prefer to give the benefit of the doubt on questions of sincerity.]

I just find it odd that the length of time with his partner would make a difference in the defendants argument. How does the length of time become relevant? If Judge Walker had just met his boyfriend 6 months ago, isn't it just as conceivable he may or may not want to marry him?? There certainly are a lot of couples that after 10 years have a less of a desire to be married. I just don't think the time tells us anything. Maybe you can explain why the length of time is important.

[Zeta-Flux]

The whole video tape issue certainly shows that Judge Walker aggressively wants the public to see the trial. It certainly could imply that he is a bit of an egotistic showoff . But it certainly would not be the first high profile trial judge that wanted a little grandstanding. Why do you feel the video taping of the trial points to whether he was impartial. I don't see the connection. Perhaps that is why it had relevant to Judge Walker's decision to not recluse himself based on a 10 year relationship, It will be interesting to see how the district courts rule on this issue.

The events show departure from norms of impartial behavior. An impartial judge does not try to break the rules of his own court, only to be stopped by the Supreme Court. An impartial judge does not break seals on evidence.

I just find it odd that the length of time with his partner would make a difference in the defendants argument. How does the length of time become relevant? If Judge Walker had just met his boyfriend 6 months ago, isn't it just as conceivable he may or may not want to marry him?? There certainly are a lot of couples that after 10 years have a less of a desire to be married. I just don't think the time tells us anything. Maybe you can explain why the length of time is important.

As I understand it, the length of time is emphasized because the proponents believe that is also the basis for which the plaintiffs brought their suite. If you read the plaintiffs' original brief, one of the important points they make is that their relationships have been long-term. This wording is also used in Walker's ruling.

So, as I understand it, the proponents argue this puts Walker in a nearly identical situation as the plaintiffs.

[california boy]

The events show departure from norms of impartial behavior. An impartial judge does not try to break the rules of his own court, only to be stopped by the Supreme Court. An impartial judge does not break seals on evidence.

How about a judge that wants more personal attention? I would still like your reasoning why a judge that wants to videotape and even breaks the rules is not impartial? What is the motive here? It seems more like the proponents have a legitimate reason to attack judge Walker and are using it in an unrelated issue.

As I understand it, the length of time is emphasized because the proponents believe that is also the basis for which the plaintiffs brought their suite. If you read the plaintiffs' original brief, one of the important points they make is that their relationships have been long-term. This wording is also used in Walker's ruling.

So, as I understand it, the proponents argue this puts Walker in a nearly identical situation as the plaintiffs.

How about you? Do you beleive the length of time is relevant? To me it is just another example of the proponents grasping at straws to TRY and show similarities. People are often in similar situations but have completely different goals or plans for the future. I don't know. If I was a federal judge, I personally wouldn't buy this one. It just doesn't add up logically. Maybe if you could explain your personal logic it would help me see their position.

[Zeta-Flux]

How about a judge that wants more personal attention? I would still like your reasoning why a judge that wants to videotape and even breaks the rules is not impartial? What is the motive here? It seems more like the proponents have a legitimate reason to attack judge Walker and are using it in an unrelated issue.

I don think I understand your logic here. By definition, if a judge places his desire for personal attention above the desire to rule according to law, that shows lack of impartiality.

Why do you think this is unrelated to impartiality? Perhaps you view partiality as implying that Walker is partial to the other party. That is not the case. If he is prejudiced to act in his own behalf that is just as partial.

How about you? Do you beleive the length of time is relevant? To me it is just another example of the proponents grasping at straws to TRY and show similarities. People are often in similar situations but have completely different goals or plans for the future. I don't know. If I was a federal judge, I personally wouldn't buy this one. It just doesn't add up logically. Maybe if you could explain your personal logic it would help me see their position.

I personally think that the most important factor is that Walker never disclosed whether or not he desired to marry. If he had said, up front, "Yes, I currently want to marry.." then I think it would be reasonable to question his impartiality. My impression is that the higher courts will agree with me on that point (and disagree with Judge Ware).

I think you would agree with me that if Walker had only been in the relationship for a short while, then there would be little reason to suppose he would want to marry his partner. However, the longer the relationship, the more likely he would be to marry--given the financial and social benefits available (as outlined in Walker's own ruling). Length of relationship is one of the key indicators, as laid down both by Walker, and the plaintiffs, of a desire to marry. It isn't a perfect indicator however, and on that point I am unsure how the higher courts will rule.

So, to say it another way, I think that the higher courts will rule that if Walker had wanted to marry, he should have disclosed that fact (which he still has not done, by the way). Whether the courts will find that a person could reasonably suppose he did want to get married, I don't know.

Would it surprise you if Walker got married, if the Supreme Court ruled against Prop. 8?

[Pahoran]

Pahoran, perhaps you read through the posts Zetta and I have been having. Did you notice there were no insults or degrading language in any of them? Did you notice how both sides could present their different points of view respectfully? Just wondering why you wanted to start putting that element into the discussion by the snide remark about bath houses in San Francisco. Grow up, and start treating people with a bit more respect.

Oh dear. I seem to have struck a nerve.

The point is that a lot of the discussion around the appropriateness of Judge Walker's hearing the case in question seems to imply that he is being treated with suspicion (if not outright "discriminated against" ) for no other reason than that he is "gay." I was simply pointing out that it is not his "gayness," nor indeed his general affiliation with the "gay" community that raises questions, but rather that his personal situation appears to be directly impacted by Prop. 8, and therefore that he is at least potentially ruling on his "own case."

Which seems to be a perfectly legitimate question.

The possibility of him receiving some kind of social backlash from the larger "gay" community might also be relevant, but as far as I can tell, nobody has raised that as an issue.

Now, I suggest you might try not to be quite so over-sensitive.

Regards,

Pahoran

[california boy]

Hope you had a happy Thanksgiving.

I don think I understand your logic here. By definition, if a judge places his desire for personal attention above the desire to rule according to law, that shows lack of impartiality.

Why do you think this is unrelated to impartiality? Perhaps you view partiality as implying that Walker is partial to the other party. That is not the case. If he is prejudiced to act in his own behalf that is just as partial.

I guess I don't see videotaping the trial as favoring either side. Why would it? Broadcasting the trial shows the proceedings but does not contribute to the validity of either sides legal arguments. Maybe you could explain why you feel it would contribute more to one side or the other's legal position.

I personally think that the most important factor is that Walker never disclosed whether or not he desired to marry. If he had said, up front, "Yes, I currently want to marry.." then I think it would be reasonable to question his impartiality. My impression is that the higher courts will agree with me on that point (and disagree with Judge Ware).

I think you would agree with me that if Walker had only been in the relationship for a short while, then there would be little reason to suppose he would want to marry his partner. However, the longer the relationship, the more likely he would be to marry--given the financial and social benefits available (as outlined in Walker's own ruling). Length of relationship is one of the key indicators, as laid down both by Walker, and the plaintiffs, of a desire to marry. It isn't a perfect indicator however, and on that point I am unsure how the higher courts will rule.

So, to say it another way, I think that the higher courts will rule that if Walker had wanted to marry, he should have disclosed that fact (which he still has not done, by the way). Whether the courts will find that a person could reasonably suppose he did want to get married, I don't know.

Would it surprise you if Walker got married, if the Supreme Court ruled against Prop. 8?

I agree with you that if Walker wanted to marry then he should have disclosed that fact. The problem is, there is no indication that he wanted or wants to be married in the future. Unlike your conclusion, the people that I know that have lived together for 10 years or more who have not married by then tend to not care about being married. I have known straight couples that have been together for decades, raised children and have no intention of marrying. This was actually quite common on my mission. We had numerous converts that we had to marry before they could be baptized.

So in answer to your question, yes I would be surprised if Judge Walker got married to his partner. It is not that uncommon in the gay or for that matter straight community to not feel the need to marry. Often for straight people or gay people, marriage becomes something more to consider when there is a financial reason such as government or employee benefits in doing so. Perhaps Judge Walker falls into this category. I actually feel that this whole Christian gays shouldn't marry contributes to this attitude for both straight and gay people in this country. The more young people hear marriage is a religious act, the less they see the need to marry if they are not religious.

[california boy]

Oh dear. I seem to have struck a nerve.

The point is that a lot of the discussion around the appropriateness of Judge Walker's hearing the case in question seems to imply that he is being treated with suspicion (if not outright "discriminated against" ) for no other reason than that he is "gay." I was simply pointing out that it is not his "gayness," nor indeed his general affiliation with the "gay" community that raises questions, but rather that his personal situation appears to be directly impacted by Prop. 8, and therefore that he is at least potentially ruling on his "own case."

Which seems to be a perfectly legitimate question.

The possibility of him receiving some kind of social backlash from the larger "gay" community might also be relevant, but as far as I can tell, nobody has raised that as an issue.

Now, I suggest you might try not to be quite so over-sensitive.

Regards,

Pahoran

I am not sensitive, I am just not willing to have a conversation with someone who finds delight in making insulting remarks because he thinks others will like his tone towards gays.

[Zeta-Flux]

I guess I don't see videotaping the trial as favoring either side. Why would it? Broadcasting the trial shows the proceedings but does not contribute to the validity of either sides legal arguments. Maybe you could explain why you feel it would contribute more to one side or the other's legal position.

You need to re-read what I wrote. One doesn't have to be partial to any given side to be partial. One can be partial to one's own interests. And when those interests cause one to neglect legality, that is a big issue.

That said, in the videotaping arena his actions clearly were favoring one side.

I agree with you that if Walker wanted to marry then he should have disclosed that fact. The problem is, there is no indication that he wanted or wants to be married in the future.

So the question then becomes, was there a legal requirement to disclose whether or not he wanted marriage, even if he didn't.

Unlike your conclusion, the people that I know that have lived together for 10 years or more who have not married by then tend to not care about being married. I have known straight couples that have been together for decades, raised children and have no intention of marrying. This was actually quite common on my mission. We had numerous converts that we had to marry before they could be baptized.

So do you question the statistics presented by the plaintiffs of how many long-term gay couples want to marry?

So in answer to your question, yes I would be surprised if Judge Walker got married to his partner. It is not that uncommon in the gay or for that matter straight community to not feel the need to marry. Often for straight people or gay people, marriage becomes something more to consider when there is a financial reason such as government or employee benefits in doing so. Perhaps Judge Walker falls into this category. I actually feel that this whole Christian gays shouldn't marry contributes to this attitude for both straight and gay people in this country. The more young people hear marriage is a religious act, the less they see the need to marry if they are not religious.

Thanks for answering my question.

[california boy]

You need to re-read what I wrote. One doesn't have to be partial to any given side to be partial. One can be partial to one's own interests. And when those interests cause one to neglect legality, that is a big issue.

That said, in the videotaping arena his actions clearly were favoring one side.

So the question then becomes, was there a legal requirement to disclose whether or not he wanted marriage, even if he didn't.

So do you question the statistics presented by the plaintiffs of how many long-term gay couples want to marry?

Thanks for answering my question.

Well I guess we are just going to disagree with the whole video issue. I do agree that he showed arrogance and grandstanding. I don't really agree that it shows favoritism to one side or the other.

I do question the statistics presented by the plaintiffs of how many long-term gay couples want to marry for two reasons. Statistics only show a general trend, not an answer to a specific couple. Also, I can see gay couples that have been in along term relationship wanting to get married in places where marriage has never been available to them. In Judge Walker's case, marriage was available to him just a short time ago. There is no compelling reason why he wouldn't have gotten married at the time it was legal. He clearly by his actions choose not to get married during that time. You would have to do a study of how many couples that have been in long term relationships before marriage in California was legal didn't get married during that time but now would like to get married. That is a completely different set of questions. Do you understand the difference?

[Zeta-Flux]

Well I guess we are just going to disagree with the whole video issue. I do agree that he showed arrogance and grandstanding. I don't really agree that it shows favoritism to one side or the other.

We can agree to disagree whether it favored one side or the other (although I think it is fairly obvious it has).

But for the third time now - it doesn't matter if it favored one side or the other. It just has to show his inability to rule impartially with respect to his own desires. Arrogance and grandstanding are not valid excuses for his behavior. By your own admission, Walker was biased-- towards his own interests.

I do question the statistics presented by the plaintiffs of how many long-term gay couples want to marry for two reasons. Statistics only show a general trend, not an answer to a specific couple.

As a mathematician this answer puzzles me. I don't think the plaintiffs have suggested the statistics apply to any specific couple. They are just that, general trends.

Also, I can see gay couples that have been in along term relationship wanting to get married in places where marriage has never been available to them. In Judge Walker's case, marriage was available to him just a short time ago. There is no compelling reason why he wouldn't have gotten married at the time it was legal. He clearly by his actions choose not to get married during that time.

So did the plaintiffs. So?

You would have to do a study of how many couples that have been in long term relationships before marriage in California was legal didn't get married during that time but now would like to get married. That is a completely different set of questions. Do you understand the difference?

I do understand. There are many measures one might use. Length of the relationship. Availability of marriage but choice not to get married. Whether they had stepped "out of the closet" or not before Proposition 8. Whether they have explicitly said they were waiting for Prop. 8 to see if it would remain legal. etc...

The measure, introduced both by Walker in his ruling, and the plaintiffs in their briefs, for what leads one to want to get married is the length of relationship. It appears you believe that the availability of marriage previously, but not getting married during that time, is also a significant indicator of whether one wants to get married. The trouble, as I see it, is that the plaintiffs cannot make that argument, because it would weaken their own case. It may be valid, but as you say may also require a new study to figure out whether it is true. As the basis for recusal/disclosure is whether a rational person could suppose (knowing all the facts) that the judge was biased, and it is currently rational to believe the plaintiffs represent a significant portion of those wanting to get married, and as the likelihood of a study such as you recommend will not be done before the trial, I doubt that issue will arise. The plaintiffs won't raise it (unless to the detriment of their own rationale), and the proponents only have to meet a burden of rationality (which is a very low bar). That said, I honestly don't know whether the appellate judges would find this reasoning rational.

[california boy]

The measure, introduced both by Walker in his ruling, and the plaintiffs in their briefs, for what leads one to want to get married is the length of relationship. It appears you believe that the availability of marriage previously, but not getting married during that time, is also a significant indicator of whether one wants to get married. The trouble, as I see it, is that the plaintiffs cannot make that argument, because it would weaken their own case. It may be valid, but as you say may also require a new study to figure out whether it is true. As the basis for recusal/disclosure is whether a rational person could suppose (knowing all the facts) that the judge was biased, and it is currently rational to believe the plaintiffs represent a significant portion of those wanting to get married, and as the likelihood of a study such as you recommend will not be done before the trial, I doubt that issue will arise. The plaintiffs won't raise it (unless to the detriment of their own rationale), and the proponents only have to meet a burden of rationality (which is a very low bar). That said, I honestly don't know whether the appellate judges would find this reasoning rational.

For me there are two separate issues. One is the question of reclusion for Judge Walker. Whether he may or may not have wanted to marry sometime in the future MIGHT be a factor in throwing out the case. More important is the actual case itself is whether it has merit. Did the defendants present reasonable arguments that the voters of California have the right to deny gays the right to marry by popular vote. I think the 9th circuit will be more interested in that. then they will trying to divine whether Judge Walker wants to get married in the future.

The second issue is the constitutional right to marry who one wants when every they want. I think it is a pretty weak argument to say we gave you the right to be married for 18 months and you didn't take advantage of it, so you no longer have that right to marry. But maybe there are those that would like to make that reasoning a factor in the validity of the case against prop 8.

[Zeta-Flux]

It is interesting. The parties have just submitted supplemental briefs (for the proceedings which will happen today). Once again, the plaintiffs write that the Prop. 8 proponents do not have standing. It is getting a little ridiculous.

[Jaybear]

It is interesting. The parties have just submitted supplemental briefs (for the proceedings which will happen today). Once again, the plaintiffs write that the Prop. 8 proponents do not have standing. It is getting a little ridiculous.

What do you find that is so ridiculous?

In a federal case, no legal issue is final at this stage of the proceeding.

If they don't raise the issue, they won't be able to raise it at the next level.