Voters Can Defend Prop 8

[california boy]

thanks for your comments. I appreciate hearing your views. I thought this more light moment in the hearing was telling.

Judges Smith and Hawkins peppered proponents' counsel, Charles Cooper, with pointed questions: Would a heterosexual judge have to disclose his ongoing, undefined relationship with a woman? Would he ever be allowed to preside over a divorce proceeding? Why should we let them preside over their cases, but exclude gay judges from preside over cases that may affect them?

Anecdotally, Judge Reinhardt looked bemused during his colleagues' exchanges with the Prop 8 attorneys, ultimately taking his time to lighten the mood: "Wouldn't being in an 8 year relationship make you LESS interested in getting married?" the Carter-appointee asked. Even Mr. Cooper laughed.

[Zeta-Flux]

thanks for your comments. I appreciate hearing your views. I thought this more light moment in the hearing was telling.

I thought that was a very funny remark myself.

[Daniel2]

Video of the appelate hearing court from this past Thursday has been released. You can view both hours at the following link:

http://joemygod.blogspot.com/2011/12/video-ninth-circuit-court-of-appeals.html?m=1

Daniel2

[california boy]

Video of the appelate hearing court from this past Thursday has been released. You can view both hours at the following link:

http://joemygod.blog...ppeals.html?m=1

Daniel2

Does anyone else find it ironic that the entire appeals process was broadcast on tv where the question is whether the trial can not be broadcast is discussed?

[Zeta-Flux]

Does anyone else find it ironic that the entire appeals process was broadcast on tv where the question is whether the trial can not be broadcast is discussed?

A little. But then, neither party was opposed to the broadcast of this trial, there were no witnesses called. They were opposed to the broadcast of the previous proceedings, and witnesses were called then.

[california boy]

Since the witness argument was pretty much distroyed by the judges, it seems to me that the only reason why the defendants don't want the video made available is because they have such a weak case and they don't want the public to see exactly how weak their case is. It is easier to cry bias judge than broadcast the proceedings that don't support their victim stance. Personally I don't blame them. I would also be fighting tooth and nail to not allow the release of the videos.

And I would also say the plaintiffs are strongly in favor of the videos being released because they feel by showing the court and lack of evidence or legal arguments against gay marriage will help persuade the public in accepting gay marriage.

So we have two sides. One not wanting the testimony of the trial to be exposed to the strong light of public opinion and the other side that welcomes that light shining on their arguments. I suspect the videos will never see the light of day because the defendants don't want them to be available and have some legal reasons that they can use to prevent that from happening.

[Zeta-Flux]

Since the witness argument was pretty much distroyed by the judges,...

In their opinion. In the opinion of the Supreme Court it was the reason that Walker was prevented initially from his video-taping. (He only got around it by making promises he didn't keep.) Remember that this same court rejected the proponents arguments on that topic previously, and Walker would have broadcast the proceedings. But the Supreme Court overruled both lower courts, and you are welcome to read their ruling where that argument was cited by them.

By the way, as I understand it, *none* of the Supreme Court cases are televised. Are you really arguing that such a rule is irrational?

...it seems to me that the only reason why the defendants don't want the video made available is because they have such a weak case and they don't want the public to see exactly how weak their case is.

I will bet you that the video is not released. Either this court, or the Supreme Court, will reverse Judge Ware's decision. (On reading further you seem to agree.) This directly disproves your hypothesis that there are no valid reasons to keep the video private.

It is easier to cry bias judge than broadcast the proceedings that don't support their victim stance. Personally I don't blame them. I would also be fighting tooth and nail to not allow the release of the videos.

And I would also say the plaintiffs are strongly in favor of the videos being released because they feel by showing the court and lack of evidence or legal arguments against gay marriage will help persuade the public in accepting gay marriage.

I disagree. I would say that the plaintiffs are in favor of releasing the videos because they wish to continue mischaracterizing the opposing arguments, and being able to edit video would aid them in that endeavor.

See how easy it is to impute nefarious intentions?

So we have two sides. One not wanting the testimony of the trial to be exposed to the strong light of public opinion...

This is a factually incorrect statement. The testimony is open to the strong light of public opinion. The proponents have never tried to suppress the official transcript.

...and the other side that welcomes that light shining on their arguments. I suspect the videos will never see the light of day because the defendants don't want them to be available and have some legal reasons that they can use to prevent that from happening.

Ummm...... wow. So you are saying that those legal reasons are valid, and yet invalid? Just...wow...

[california boy]

I think you misread my post entirely. I thought I was clear that I felt the defense had a good legal reason to prevent the tapes from being released to the public.

But I also said, the last thing they want is the public to view their weak case they presented on gay marriage.

If they thought they had strong legal arguments, they would be chomping at the bit to get those tapes released. I don't blame them for not wanting the tapes released. Their case is pathetic. it is in their own interest to keep the public from seeing the record of the trial.

[Zeta-Flux]

I think you misread my post entirely. I thought I was clear that I felt the defense had a good legal reason to prevent the tapes from being released to the public.

But I also said, the last thing they want is the public to view their weak case they presented on gay marriage.

No, I understood you said that. Apparently you didn't understand that I believe this position directly undercuts itself. If someone has a valid legal reason for pushing for an action, then when said person pushes for that action that is not a sign of nefarious intent.

If they thought they had strong legal arguments, they would be chomping at the bit to get those tapes released. I don't blame them for not wanting the tapes released. Their case is pathetic. it is in their own interest to keep the public from seeing the record of the trial.

Keep repeating this. Maybe you'll start believing it.

Look, one could just as easily say that the plaintiffs don't want the proponents to have standing because they know their case is pathetic. That they are afraid the Supreme Court won't ignore precedent like Walker did. That they won't take the opposing side out of context like Walker did. etc...

You argue that the proponents legal arguments are pathetic. Okay, let's test that hypothesis with a simple question. According to the precedent of the 9th circuit, which Walker was under and should have considered, does homosexuality merit strict scrutiny or rational basis review?

[california boy]

No, I understood you said that. Apparently you didn't understand that I believe this position directly undercuts itself. If someone has a valid legal reason for pushing for an action, then when said person pushes for that action that is not a sign of nefarious intent.

Keep repeating this. Maybe you'll start believing it.

Look, one could just as easily say that the plaintiffs don't want the proponents to have standing because they know their case is pathetic. That they are afraid the Supreme Court won't ignore precedent like Walker did. That they won't take the opposing side out of context like Walker did. etc...

You argue that the proponents legal arguments are pathetic. Okay, let's test that hypothesis with a simple question. According to the precedent of the 9th circuit, which Walker was under and should have considered, does homosexuality merit strict scrutiny or rational basis review?

There is a big difference between releasing the tapes and arguing the case. Releasing the tapes for either side does not effect the legal judgement on the case. It just lets the public view what happened at the trial. Neither side gives up any legal arguement by releasing the tape. It only effects how the public views the legal arguments.

[Zeta-Flux]

There is a big difference between releasing the tapes and arguing the case. Releasing the tapes for either side does not effect the legal judgement on the case. It just lets the public view what happened at the trial. Neither side gives up any legal arguement by releasing the tape. It only effects how the public views the legal arguments.

This is factually incorrect, by your own admission. One side has a valid, legitimate legal argument for why the tapes should not be released. Saying that the only effect is "such and such" is thus, plainly, false.

Furthermore, the public can view the official transcript of the case. No part of the evidence of the trial is being restricted. The tape is not evidence, and was created for the sole purpose of Walkers personal use. Only later was the tape introduced, by Walker, into the record, with a solemn promise on his part that it would remain sealed. It is only through Walker's shenanigans that the tape exists at all. And only by breaking his word, and an official seal, has any part of it been seen.

Finally, I agree with you that the tapes would affect "how the public views the legal arguments". That is part of the problem. Legal arguments should not be judged by tape recordings created for personal private use--but rather by the official transcript of the case.

Are you are trying to argue that every case should be televised publicly? Do you really want that? Have you considered the effects this might have on the judiciary?

But back to the crux of the matter--the strength of the legal arguments. I ask again: According to the precedent of the 9th circuit, which Walker was under and should have considered, does homosexuality merit strict scrutiny or rational basis review? As a follow-up question: Would someone know the answer to this question after the media edited the tapes for the "juicy" bits?

[Jaybear]

You argue that the proponents legal arguments are pathetic. Okay, let's test that hypothesis with a simple question. According to the precedent of the 9th circuit, which Walker was under and should have considered, does homosexuality merit strict scrutiny or rational basis review?

The premise of your question is false.

Walker found Prop 8 did not pass the rational basis test.

From the opinion:

The evidence shows conclusively that moral and religious views form the only basis for a belief that same-sex couples are different from opposite-sex couples. See FF 48, 76-80. The evidence fatally undermines any purported state interest in treating couples differently; thus, these interests do not provide a rational basis supporting Proposition 8

Your side is best served by keeping the tapes under wrap. The "secular arguments" against gay marriage are not well suited for the courtroom, where you actually have to back up your arguments with evidence.

[Jaybear]

Are you are trying to argue that every case should be televised publicly?

No one made that argument. The argument is that this case, which impacts the public, should be televised.

Not every case, ie divorce cases, contract dispute, merit public scrutiny.

[cdowis]

There is a big difference between releasing the tapes and arguing the case. Releasing the tapes for either side does not effect the legal judgement on the case. It just lets the public view what happened at the trial. Neither side gives up any legal arguement by releasing the tape. It only effects how the public views the legal arguments.

This is a very naive argument. You assume that the judges are impassionate and completely objective, unmoved by public opinion or media attention.

Lawyers are adept at using the media to "poison" the jury pool prior to the trial. In this case, to influence the judges' decision prior to the formal arguments in the court.

[cdowis]

Your side is best served by keeping the tapes under wrap. The "secular arguments" against gay marriage are not well suited for the courtroom, where you actually have to back up your arguments with evidence.

You are probably right because the tape will show that the lawyers were poorly prepared. They should be allowed to conduct their defense without the influence of the prior trial.

[Zeta-Flux]

The premise of your question is false.

Walker found Prop 8 did not pass the rational basis test.

I was and am well aware of Walker's conclusions and ruling. What does that have to do with the premise of my question? Nothing. My premise is centered around california boy's assertions. And whether he has a working knowledge of what the proponents have argued and whether it is factually correct. I'll get to how Walker ruled later.

Your side is best served by keeping the tapes under wrap. The "secular arguments" against gay marriage are not well suited for the courtroom, where you actually have to back up your arguments with evidence.

I find it remarkably unremarkable that the side which has a legal basis for having the tape private is best served by keeping it private. :-|

As for your second assertion, I'm willing to wait for your evidence. You might notice that in this thread I have actively discussed the actual arguments and evidences presented. I'm willing to discuss those issues.

But beyond that I don't quite follow your logic. If the arguments in the courtroom are weak, then the judges (and not the public) will rule accordingly.

No one made that argument. The argument is that this case, which impacts the public, should be televised.

Not every case, ie divorce cases, contract dispute, merit public scrutiny.

First, I never asserted anyone did make that argument. I was asking california boy a question, not making an assertion.

Second, I would argue that every case impacts the public. Although I understand your rule for preventing certain cases from being publicized, I don't think it addresses all the issues. (For one example, I agree with cdowis' point.)

Third, you are factually wrong about the argument in this case. It is not about whether the case should be televised. That issue was decided, against Walker, by the Supreme Court of the United States. The question now is whether the tape Walker created, for his personal use, should be made public.

[frankenstein]

In compliance with all things related to topic that involve homosexual discussion, I would like to shift the focus from prop 8 and discuss a "letter" signed by numerous religious leaders including Bishop Burton of the LDS Church.

The document can be found here

The LDS Church, officially supported the non-discrimination ordinance of Salt Lake City. The SLC ordinance bans discrimination in housing, employment, and other areas based on sexual orientation. Why would Bishop Burton sign the Marriage and Religious Freedom (MARF) document.

From MARF:

By a single stroke, every law where rights depend on marital status—such as employment discrimination, employment benefits, adoption, education, healthcare, elder care, housing, property, and taxation—will change so that same-sex sexual relationships must be treated as if they were marriage. That requirement, in turn, will apply to religious people and groups in the ordinary course of their many private or public occupations and ministries—including running schools, hospitals, nursing homes and other housing facilities, providing adoption and counseling services, and many others.

2008 statement from LDS FP

The Church's opposition to same-sex marriage neither constitutes nor condones any kind of hostility toward gays and lesbians. Even more, the Church does not object to rights for same-sex couples regarding hospitalization and medical care, fair housing and employment rights, or probate rights, so long as these do not infringe on the integrity of the traditional family or the constitutional rights of churches. "

If the Church does not object to rights for same-sex couples in employment, housing, etc, why would the LDS Churh support MARF? I realize none here can speak for the Church but ideas would be appreciated.

There is one aspect of MARF that makes it less than convincing to me, and that is the several claims of not being allowed to tax monies because of religious stance on ssm.

The question then is:

Should Governments subsidize religions via tax credits or tax exemptions?

I recognize "the power to tax is the power to destroy", however, there is difficultly in allowing religion to maintain tax exemptions whilst other entities are not permitted to maintain tax exemptions i.e. why should a non-religious corporation have to abide by ssm laws and not a religious corporation? Wouldn't the 1st Amendment cover both?

[Jeff K.]

Two problems:

A tax exemption is not government support. This accepts a false premise that the government has the right to automatically tax everything and only exempts some things. This is why the government must pass laws in order to tax, not pass laws to create exemptions.

I recognize "the power to tax is the power to destroy", however, there is difficultly in allowing religion to maintain tax exemptions whilst other entities are not permitted to maintain tax exemptions i.e. why should a non-religious corporation have to abide by ssm laws and not a religious corporation? Wouldn't the 1st Amendment cover both?

1970 Walz v Tax Commission

(1) exemptions were granted to all houses of religious worship within a broad class of property owned by nonprofit, quasi-public corporations which included hospitals, libraries, playgrounds, and scientific, professional, historical, and patriotic groups, and the legislative purpose was thus not aimed at establishing, sponsoring, or supporting religion, and

(2) the exemptions for religious organizations created only a minimal and remote involvement between church and state, and far less of an involvement than would be created by taxation of churches, and the effect of the exemptions was thus not an excessive government entanglement with religion. The grant of a tax exemption was not sponsorship of the organizations because the government did not transfer part of its revenue to churches but simply abstained from demanding that the churches support the state. The exemption created a more minimal and remote involvement between church and state than did taxation because it restricted the fiscal relationship between church and state and reinforced the desired separation insulating one from the other. http://en.wikipedia...._Tax_Commission

[Jeff K.]

In taxation, the IRS has wide leeway in order to make decisions and rules regarding what falls under a tax exemption and what does not. By pulling churches into the mix that individuals and corporations must face regarding taxes, you in effect place churches under the control of government entities which can decide whether various entities within churches can deduct specific expenses or not. The IRS constantly makes such decisions on a yearly basis for all entities and there is little or no separation between the individual and the state in terms of taxes. The entaglement of church and state would be greater if a tax were created and the separation would be removed thus negating Madison and Jefferson's position in regard to the establishment of the First Amendment to include religion.

On the otherside of the coin:

Would we want churches to have the right to demand tithes from the state? If there is no separation, and a single church becomes predominant in our nation, what exactly would prevent the church from demanding as much from the state and in effect making the idea of a theocracy plausible? Could for instance, the state of Utah, with its predominant LDS population face the demand of state payment to LDS churches for support of that institution, just as say a more profitable and efficient endorsement of Solyndra?

The Constitution does well to both protect churches from the state, and to protect the state from churches.

[Zeta-Flux]

The tapes have been resealed: Order reversing Chief Judge Ware

This was not a surprising reversal.

[Daniel2]

The tapes have been resealed: Order reversing Chief Judge Ware

This was not a surprising reversal.

Agreed, Zeta--I think this was the ruling that most who were following the case were expecting. And--even though I'd personally love to see the tapes--based on Walker's repeated promise that he would not to release the tapes, this ruling was the right one, IMO.

I seem to recall reading that there's a statute of limitations, and after a decade or two, the tapes will be able to be released (though I don't recall where....). If that's the case, then until then, we'll just have to rely on reading the transcripts or dramatizations of the hearing.

Daniel2

[Zeta-Flux]

Daniel,

I think such a time-limit was mentioned in the order. After 10 years this issue may be re-raised.

[Daniel2]

According to an email I just received from The American Foundation for Equal Rights:

"The Ninth Circuit Court of Appeals will issue a ruling in AFER’s case challenging Prop. 8 tomorrow (Tuesday, Feb 7, 2012) at 10:30 a.m. PT."

[Zeta-Flux]

The link on the court's website says it will be at 10:00am. It further adds that the motion to vacate the lower court's ruling was denied. The informational pdf

[Daniel2]

The link on the court's website says it will be at 10:00am. It further adds that the motion to vacate the lower court's ruling was denied. The informational pdf

Thanks for clarifying with more accurate info, Z.

Perhaps synchronisticly, tomorrow will be one week prior to Valentine's Day this year. Of course, that may be wholely unrelated to the timing of the court's opinion.

Daniel2