Why California’s Proposition 8 Would Make Jesus Weep (3 Viewers)

[Statorama]

It is kind of humorous that the judge found the california constitution unconstitutional

 

[flufhed]

Those against this decision have argued their case in here so poorly, I think they might actually have been the incompetent lawyers from the actual trial.

 

[MongoL3]

Good article here by Andrew Cohen:

The legal team that fought to save California's Proposition 8 from history's scrap heap practically dared U.S. District Judge Vaughn Walker to rule against the 2008 ballot initiative that banned same-sex marriage in the Golden State.

So the judge is gay? Nice.

The article I posted doesn't mention it. Why does this matter to you? Do you believe a gay judge is unable to arrive at a reasoned decision on this issue?

I think its convenient that you left that part out If I were a judge ruling on if fantasy football should be legal or not and I am an avid player. How do you think I'd rule?

You'd probably just rule in your own self-interest, merits of the case be damned.But why project that inclination onto an actual professional judge?

Maurile, Im not so naive to think that just because this guy is a judge he is exempt from serving his own self interest. Cops, lawyers, priests, politicians and everyday people arent exempt from this. Why should he be? He might be a stand up guy and on the up and up but to say cuz he's a judge he wouldnt do that is absurd.

 

[beavers]

Is Jesus done weeping now?

 

[MongoL3]

It is kind of humorous that the judge found the california constitution unconstitutional

Makes me wonder what took so long.

 

[Da Guru]

Those against this decision have argued their case in here so poorly, I think they might actually have been the incompetent lawyers from the actual trial.

I thought the state of California voted on this proposition?

 

[flufhed]

Good article here by Andrew Cohen:

The legal team that fought to save California's Proposition 8 from history's scrap heap practically dared U.S. District Judge Vaughn Walker to rule against the 2008 ballot initiative that banned same-sex marriage in the Golden State.

So the judge is gay? Nice.

The article I posted doesn't mention it. Why does this matter to you? Do you believe a gay judge is unable to arrive at a reasoned decision on this issue?

I think its convenient that you left that part out If I were a judge ruling on if fantasy football should be legal or not and I am an avid player. How do you think I'd rule?

You'd probably just rule in your own self-interest, merits of the case be damned.But why project that inclination onto an actual professional judge?

Some pretty big ownage here.

 

[flufhed]

Those against this decision have argued their case in here so poorly, I think they might actually have been the incompetent lawyers from the actual trial.

I thought the state of California voted on this proposition?

Do you have any idea what is going on in here?

 

[MongoL3]

Must have missed my retort

 

[scoobygang]

It is kind of humorous that the judge found the california constitution unconstitutional

Why? There's no conflict in that at all. If California enacted an state constitutional amendment barring black people from voting in state elections, that would be unconstitutional.

 

[tommyboy]

Obviously it went over my head because I don't consider my assertion to be ridiculous. So let's start there. If two gay men are in love and wish to get married, and the law says they can't, I would define that as "an injury for which relief can be granted", using DParker's definition. Why is this ridiculous to you?

the law says they can, in California. Beside, even if they couldn't get married, they couldn't have gotten married throughout the entire history of civilization. Furthermore one must consider whether marriage is a trait peculiar to the union of a man and a woman exclusively, such as the act of reproduction might be considered so, or as hair color or height might be of an individual. So not only is your assertion ridiculous in the context of current California laws and priveledges accorded to gay couples, it eliminates any consideration of the nature of marriage.

You keep bringing up the history of civilization, as if this has some sort of bearing. We have the 14th Amendment in our constitution, which guarantees equal treatment under the law. I assure you that in the history of civilization this sort of amendment is nearly unique, as is our entire bill of rights. As for your argument about reproduction, should we make it illegal for infertile heterosexuals to marry? Should it be illegal for heterosexuals who have no intent to have children to marry?

you missed my point. i'm not saying reproduction is for hetersexuals only. I'm considering whether or not marriage would be a unique trait of the union of a man and woman, as would for example, the act of reproduction (the act, not the result) between a man and a woman. This has nothing to do with legality, it has to do with the inherent nature of a male/female bond. I'm not even certain it is, but there's certainly a debate to be had.back to the historical aspect of this ruling, you seem to dismiss out of hand thousands of years of human experience by redefining the meaning of the word marriage. It is this aspect of your logic and the judges logic that makes one wonder by what good reasoning would you do this>? The equal protection clause would not apply in the state of California because the State of California was not denying gay couples the rights of marriage. The constitutional amendment simply stated that marriage was defined as between a man and a woman. Thats it. It didn't say that gay couples couldn't attain the same rights as married heterosexual couples through the perfectly legal institution of domestic partnerships recognized under California law. The judge needed to create a twist of logic, herculean IMO, he did so by claiming that all of a sudden gender had nothing to do with marriage, people that voted for Prop 8 were saying that gays were inferior and inventing out of whole cloth a violation of the Equal Protection Clause where none existed.

 

[Statorama]

It is kind of humorous that the judge found the california constitution unconstitutional

Why? There's no conflict in that at all. If California enacted an state constitutional amendment barring black people from voting in state elections, that would be unconstitutional.

It was just the word play that made me giggle.

 

[Maurile Tremblay]

Those against this decision have argued their case in here so poorly, I think they might actually have been the incompetent lawyers from the actual trial.

I thought the state of California voted on this proposition?

You thought right. (I'm not sure what that has to do with the posts you were quoting, though.)

 

[Bottomfeeder Sports]

.... Beside, even if they couldn't get married, they couldn't have gotten married throughout the entire history of civilization.

Wrong! Gay marriage existed in Egypt, Greece, and Rome (see Nero) and numerous other cultures every where on the planet and every time through out history.ETA: Dealt with starting here.

 

[shader]

Why do people care what other people do so much?

If you're a christian, aren't you convinced that God will take care of things? Meaning if he sees something that upsets Him, that he'll dole out the punishment as He sees fit?

I just can't get over the christians that try to get all involved with the political world and get laws changed because some people are doing things they believe are wrong.

 

[Bottomfeeder Sports]

Those against this decision have argued their case in here so poorly, I think they might actually have been the incompetent lawyers from the actual trial.

Why would anyone competent take on a case without a single decent argument in their favor? When the best argument you have is the silly "government shouldn't be in the marriage business at all" you don't have much.

 

[MongoL3]

Why do people care what other people do so much?If you're a christian, aren't you convinced that God will take care of things? Meaning if he sees something that upsets Him, that he'll dole out the punishment as He sees fit?I just can't get over the christians that try to get all involved with the political world and get laws changed because some people are doing things they believe are wrong.

Yes, thats why im not too concerned with all this. Oh, and the Christians arent the ones trying to get the law changed. HTH

 

[Bottomfeeder Sports]

gay

Seems like it's a rumor ... Do we have evidence that he's gay aside from claims in a newspaper?His record is anti-gay.

he wouldn't comment to us when we asked about his orientation and whether it was relevant to the lawsuit.

A public official with ties to the GOP (appointed by HW) that is labeled as "anti gay"? I'd call that pretty strong evidence of homosexuality.

 

[Maurile Tremblay]

I just can't get over the christians that try to get all involved with the political world and get laws changed because some people are doing things they believe are wrong.

H.L. Mencken described Puritanism as the haunting fear that someone, somewhere, is having fun.

 

[beavers]

gay

Seems like it's a rumor ... Do we have evidence that he's gay aside from claims in a newspaper?His record is anti-gay.

he wouldn't comment to us when we asked about his orientation and whether it was relevant to the lawsuit.

A public official with ties to the GOP (appointed by HW) that is labeled as "anti gay"? I'd call that pretty strong evidence of homosexuality.

 

[shader]

Why do people care what other people do so much?If you're a christian, aren't you convinced that God will take care of things? Meaning if he sees something that upsets Him, that he'll dole out the punishment as He sees fit?I just can't get over the christians that try to get all involved with the political world and get laws changed because some people are doing things they believe are wrong.

Yes, thats why im not too concerned with all this. Oh, and the Christians arent the ones trying to get the law changed. HTH

No they aren't. But there are plenty of people in strong opposition. People with signs, etc.The hypocrisy of most christians when it comes to homosexuals is horrible. They think they can have normal heterosexual sex outside of marriage no problem, but are adamently against homosexual activities, when both are condemned in the bible.

 

[Sand]

tangent:i find this decision interesting in that it is cementing a pattern since 2008 of politicians, judges, adminstrators, the white house etc...basically higher levels of government reversing or ignoring the desires of the majority of the populationon all these topics, the government has gone against the peopleimmigrationgay marriagehealth carecap and trade/EPA rulesNY trial for KSMtaxes

Cap and trade wasn't passed. KSM hasn't been tried in NY. Taxes have been reduced.

2/3 ain't bad.

 

[MongoL3]

Why do people care what other people do so much?If you're a christian, aren't you convinced that God will take care of things? Meaning if he sees something that upsets Him, that he'll dole out the punishment as He sees fit?I just can't get over the christians that try to get all involved with the political world and get laws changed because some people are doing things they believe are wrong.

Yes, thats why im not too concerned with all this. Oh, and the Christians arent the ones trying to get the law changed. HTH

No they aren't. But there are plenty of people in strong opposition. People with signs, etc.

Oh no, not the signs!!

 

[TobiasFunke]

Those against this decision have argued their case in here so poorly, I think they might actually have been the incompetent lawyers from the actual trial.

Why would anyone competent take on a case without a single decent argument in their favor? When the best argument you have is the silly "government shouldn't be in the marriage business at all" you don't have much.

Plus if you gave me a case where I had to prove that 2+2=4 and told me Ted Olsen and David Boies were on the other side, I'd run away screaming.

 

[Bottomfeeder Sports]

2. If the Supreme Court rules against gay marriage, then those in favor will be forced to try and win over the majority of the public to accept gay marriages. It will be extremely difficult, akin to trying to convince the South in the mid 1950s to accept immigration by allowing them to vote on it. I do not believe this effort will succeed for at least one more generation.

Therefore, IMO, this upcoming Supreme Court decision is of upmost importance.

Actually the Supreme Court already had in 1972 with Baker v. Nelson. I would think that a wrong decision on the case at the Supreme Court would be damaging, but wouldn't automatically toss out all the other actions such as the one involving the State of Massachusetts. I guess we will see.

 

[scoobygang]

Those against this decision have argued their case in here so poorly, I think they might actually have been the incompetent lawyers from the actual trial.

Why would anyone competent take on a case without a single decent argument in their favor? When the best argument you have is the silly "government shouldn't be in the marriage business at all" you don't have much.

I don't think that's their best argument (in this case). In this case, the best argument is that to the extent there is a federally recognized right to marriage, as detailed in cases like Loving and Griswold, then the California scheme granting civil unions provides the full coverage of that right. And then I'd argue that there is no conflict between saying that while the Constitutionally protected right of marriage may not cover social attitudes toward the institution, a state may nevertheless have a rational basis for preserving the traditon and social attitudes toward the term, particularly when doing so validates the considered judgment of the voters. That's a very narrow position, and while I think Maurile has constructed an excellent legal proof arguing to the contrary, I don't think it's crazy to suggest that Prop 8 (as it should have been defended) could pass Constitutional muster. Understand that this position is dependent on showing that civil unions are legally indistinct from marriage (which is isn't entirely true when we consider Federal benefits).

 

[scoobygang]

Why do people care what other people do so much?If you're a christian, aren't you convinced that God will take care of things? Meaning if he sees something that upsets Him, that he'll dole out the punishment as He sees fit?I just can't get over the christians that try to get all involved with the political world and get laws changed because some people are doing things they believe are wrong.

Yes, thats why im not too concerned with all this. Oh, and the Christians arent the ones trying to get the law changed. HTH

Prop 8 was largely bankrolled by the Mormons. I'll leave it to you and Pick to decide whether they qualify as real Christians*.* This thread could use some Pickisms, Bucko.

 

[Maurile Tremblay]

Those against this decision have argued their case in here so poorly, I think they might actually have been the incompetent lawyers from the actual trial.

Why would anyone competent take on a case without a single decent argument in their favor? When the best argument you have is the silly "government shouldn't be in the marriage business at all" you don't have much.

The difficult part of the case for the proponents of Prop 8 should have been arguing that heightened scrutiny is not warranted, and that the rational basis test should apply. If they were able to succeed in that, they should have been able to put on some competent evidence that preserving the dual system of marriage–plus–domestic-partnerships was rationally related to some legitimate state interest.In this case, however, arguments about the appropriate level of scrutiny were rendered moot because the Prop 8 proponents pretty much punted on the whole idea of submitting competent evidence. As a result, they didn't even pass the rational basis test.

From what I can tell, it could have been a very different case if the Prop 8 proponents had made some different decisions in their litigation strategy.

 

[tommyboy]

Those against this decision have argued their case in here so poorly, I think they might actually have been the incompetent lawyers from the actual trial.

Why would anyone competent take on a case without a single decent argument in their favor? When the best argument you have is the silly "government shouldn't be in the marriage business at all" you don't have much.

I don't think that's their best argument (in this case). In this case, the best argument is that to the extent there is a federally recognized right to marriage, as detailed in cases like Loving and Griswold, then the California scheme granting civil unions provides the full coverage of that right. And then I'd argue that there is no conflict between saying that while the Constitutionally protected right of marriage may not cover social attitudes toward the institution, a state may nevertheless have a rational basis for preserving the traditon and social attitudes toward the term, particularly when doing so validates the considered judgment of the voters. That's a very narrow position, and while I think Maurile has constructed an excellent legal proof arguing to the contrary, I don't think it's crazy to suggest that Prop 8 (as it should have been defended) could pass Constitutional muster. Understand that this position is dependent on showing that civil unions are legally indistinct from marriage (which is isn't entirely true when we consider Federal benefits).

like the right to get screwed on your tax deductions.

 

[dparker713]

Those against this decision have argued their case in here so poorly, I think they might actually have been the incompetent lawyers from the actual trial.

Why would anyone competent take on a case without a single decent argument in their favor? When the best argument you have is the silly "government shouldn't be in the marriage business at all" you don't have much.

Because its an interesting case against accomplished opponents. Because you'll likely get significant publicity that has a value beyond your fees. Because you believe this is a matter that should be legislated and not decreed. Because even if you were to lose, there is guarenteed atleast one high profile appeal and possibly two - more fees, more airtime, and possibly the opportunity to join a extremely small group of lawyers and appear before the US Supreme Court. In this case, the system broke down. The AG abdicated his sworn duties, the governor backed him in that regard. A myopic special interest group has hack lawyers more interested in making a statement than in winning the case. And all of this means a highly important and contentious Constitutional issue could be decided without a robust adversarial process.

 

[Josie Maran]

Why do people care what other people do so much?

If you're a christian, aren't you convinced that God will take care of things? Meaning if he sees something that upsets Him, that he'll dole out the punishment as He sees fit?

I just can't get over the christians that try to get all involved with the political world and get laws changed because some people are doing things they believe are wrong.

Yes, thats why im not too concerned with all this. Oh, and the Christians arent the ones trying to get the law changed. HTH

What the hell do you think Prop 8 was?

 

[Running with scissors]

Why do people care what other people do so much?

If you're a christian, aren't you convinced that God will take care of things? Meaning if he sees something that upsets Him, that he'll dole out the punishment as He sees fit?

I just can't get over the christians that try to get all involved with the political world and get laws changed because some people are doing things they believe are wrong.

Yes, thats why im not too concerned with all this. Oh, and the Christians arent the ones trying to get the law changed. HTH

What the hell do you think Prop 8 was?

I actually wrote this and was going to hit reply, and then I remembered that I was replying to Peens.

 

[MongoL3]

Why do people care what other people do so much?

If you're a christian, aren't you convinced that God will take care of things? Meaning if he sees something that upsets Him, that he'll dole out the punishment as He sees fit?

I just can't get over the christians that try to get all involved with the political world and get laws changed because some people are doing things they believe are wrong.

Yes, thats why im not too concerned with all this. Oh, and the Christians arent the ones trying to get the law changed. HTH

What the hell do you think Prop 8 was?

I actually wrote this and was going to hit reply, and then I remembered that I was replying to Peens.

Whatever....

 

[Leroy Hoard]

 

[Josie Maran]

Why do people care what other people do so much?

If you're a christian, aren't you convinced that God will take care of things? Meaning if he sees something that upsets Him, that he'll dole out the punishment as He sees fit?

I just can't get over the christians that try to get all involved with the political world and get laws changed because some people are doing things they believe are wrong.

Yes, thats why im not too concerned with all this. Oh, and the Christians arent the ones trying to get the law changed. HTH

What the hell do you think Prop 8 was?

I actually wrote this and was going to hit reply, and then I remembered that I was replying to Peens.

I couldn't resist.

 

[dparker713]

Why do people care what other people do so much?

If you're a christian, aren't you convinced that God will take care of things? Meaning if he sees something that upsets Him, that he'll dole out the punishment as He sees fit?

I just can't get over the christians that try to get all involved with the political world and get laws changed because some people are doing things they believe are wrong.

Yes, thats why im not too concerned with all this. Oh, and the Christians arent the ones trying to get the law changed. HTH

What the hell do you think Prop 8 was?

Well, the more settled version of the law is the Prop 8 side. It was the status quo, then overturned by judicial decision, then a different prop, which itself was overturned, and then the prop 8 amendment, which finally led to the current lawsuit.

 

[Statorama]

John Yoo weighs in

I've now had a chance to read Judge Vaughn Walker's 138 page decision (for those interested, only the last 40 pages or so contain the important discussion of constitutional law).

It is a sweeping decision, not just on gay marriage, but for its elevation of the federal judges into arbiters of social norms and private morality. Judge Walker sees it as the job of the courts to test whether laws passed by a majority of the people, or a legislature, advance the public good as defined by expert testimony by social scientists. I'm more than happy if the government required that its own laws produce more benefits than costs. But do we want this job done by a single judge, or a small group of judges, relying on social science (in this case, the work of sociologists, psychologists, and political scientists produced to the court by the litigating parties) of a recent phenomenon?

Here's how it worked in the gay marriage case. Walker asked whether the goal of Prop 8 -- higher levels of marriage & less divorce, encouragement of procreation, social stability -- were achieved by a ban on gay marriage. He said no. He cited a few studies, as if they proved facts about the real world, by the plaintiffs' experts. Because of this, the law failed the rational basis test -- there was no possible logical link between the goals of Prop 8 and the means.

Imagine if the courts were to apply this approach to other laws. Did the stimulus and bailout bills in fact encourage economic growth? Do the illicit drug laws in fact increase health and reduce crime? Can we catch terrorists by monitoring their emails and phone calls without a warrant? One judge, armed with a few social science studies, could decide to overrule the considered judgment of the elected branches of government.

Why is this troubling? First, social science -- as anyone who reads these studies -- is far from a perfect science. There are so many variables and alternative explanations involved in understanding human interaction. I am dubious whether sociologists and psychologists can tell us the real causes and effects of gay marriage -- it has only been legal in the United States for a few years, and only in a few states. That is why my preferred solution of relying on federalism makes sense -- if states can choose different policies, we can learn from the information generated and understand the costs and benefits.

Second, what does this portend for other legislation built on moral intuitions? If gay marriage goes by the wayside because it is hard to measure a ban's effects, what about similar laws. Will Judge Walker invalidate the ban on adultery next? How about bigamy? Why not allow group marriages? What about the age limitations on marriage or sex?

Third why the limited use of this aggressive form of judicial review only on morals legislation? I think one reflection of the judge's activism here is that he subjects Prop 8 to a demanding standard, but would never apply the same review to economic legislation, where the utter irrationality of the government's regulations is far easier to see.

 

[TobiasFunke]

John Yoo weighs in

I've now had a chance to read Judge Vaughn Walker's 138 page decision (for those interested, only the last 40 pages or so contain the important discussion of constitutional law).

It is a sweeping decision, not just on gay marriage, but for its elevation of the federal judges into arbiters of social norms and private morality. Judge Walker sees it as the job of the courts to test whether laws passed by a majority of the people, or a legislature, advance the public good as defined by expert testimony by social scientists. I'm more than happy if the government required that its own laws produce more benefits than costs. But do we want this job done by a single judge, or a small group of judges, relying on social science (in this case, the work of sociologists, psychologists, and political scientists produced to the court by the litigating parties) of a recent phenomenon?

Here's how it worked in the gay marriage case. Walker asked whether the goal of Prop 8 -- higher levels of marriage & less divorce, encouragement of procreation, social stability -- were achieved by a ban on gay marriage. He said no. He cited a few studies, as if they proved facts about the real world, by the plaintiffs' experts. Because of this, the law failed the rational basis test -- there was no possible logical link between the goals of Prop 8 and the means.

Imagine if the courts were to apply this approach to other laws. Did the stimulus and bailout bills in fact encourage economic growth? Do the illicit drug laws in fact increase health and reduce crime? Can we catch terrorists by monitoring their emails and phone calls without a warrant? One judge, armed with a few social science studies, could decide to overrule the considered judgment of the elected branches of government.

Why is this troubling? First, social science -- as anyone who reads these studies -- is far from a perfect science. There are so many variables and alternative explanations involved in understanding human interaction. I am dubious whether sociologists and psychologists can tell us the real causes and effects of gay marriage -- it has only been legal in the United States for a few years, and only in a few states. That is why my preferred solution of relying on federalism makes sense -- if states can choose different policies, we can learn from the information generated and understand the costs and benefits.

Second, what does this portend for other legislation built on moral intuitions? If gay marriage goes by the wayside because it is hard to measure a ban's effects, what about similar laws. Will Judge Walker invalidate the ban on adultery next? How about bigamy? Why not allow group marriages? What about the age limitations on marriage or sex?

Third why the limited use of this aggressive form of judicial review only on morals legislation? I think one reflection of the judge's activism here is that he subjects Prop 8 to a demanding standard, but would never apply the same review to economic legislation, where the utter irrationality of the government's regulations is far easier to see.

I respect the guy's intellect, but wow, is that just awful. First of all, the words "equal protection" do not appear. That's odd. Maybe he assumes the reader has a constitutional scholar's understanding of equal protection jurisprudence as a baseline, but that seems like a stretch.

Second, he says this about the equal protection test:

Imagine if the courts were to apply this approach to other laws.

Ummm, they do. Or at least they would,if someone challenged the law on equal protection grounds. The difference between Prop 8 (as argued before this court) and the other examples he cites is that Prop 8 is so remarkably pointless and stupid that nobody could offer a single rational basis by which the law achieved a legitimate end. The point isn't that one side offered social science studies to make their point ... it's that they did so, and the other side utterly failed to do so to demonstrate the rational basis. You could challenge health care legislation the same way, but a competent attorney would have no problem putting something before the court showing a rational basis to achieve a legitimate end, regardless of what you think of the wisdom of the law. And so the law would survive equal protection challenge.Every federal or state law that differentiates between groups of people (that is to say, pretty much every law) can be subjected to this level of scrutiny on legal challenge. That Yoo doesn't know that, or that he's willing to publicly write as if he doesn't, is a little sad.

 

[timschochet]

John Yoo weighs in

Second, what does this portend for other legislation built on moral intuitions? If gay marriage goes by the wayside because it is hard to measure a ban's effects, what about similar laws. Will Judge Walker invalidate the ban on adultery next? How about bigamy? Why not allow group marriages? What about the age limitations on marriage or sex?

Why is it that social conservatives, whenever they discuss this issue, feel compelled to bring up the "slippery slope" argument? We are always hearing about polygamy, incest, man and dog, man and child, etc. If I had to answer these questions, it would be pretty easy: let consenting adults do as they wish in these affairs. But I shouldn't even have to make this argument, because these issues are nothing more than red herrings. There isn't a significant number of polygamists pushing to have their marriages recognized by the state. The argument that this gay marriage should not be allowed because it may damage other "moral institutions" is beyond weak; it's absurd.

 

[oneohh]

John Yoo weighs in

I've now had a chance to read Judge Vaughn Walker's 138 page decision (for those interested, only the last 40 pages or so contain the important discussion of constitutional law).

It is a sweeping decision, not just on gay marriage, but for its elevation of the federal judges into arbiters of social norms and private morality. Judge Walker sees it as the job of the courts to test whether laws passed by a majority of the people, or a legislature, advance the public good as defined by expert testimony by social scientists. I'm more than happy if the government required that its own laws produce more benefits than costs. But do we want this job done by a single judge, or a small group of judges, relying on social science (in this case, the work of sociologists, psychologists, and political scientists produced to the court by the litigating parties) of a recent phenomenon?

Here's how it worked in the gay marriage case. Walker asked whether the goal of Prop 8 -- higher levels of marriage & less divorce, encouragement of procreation, social stability -- were achieved by a ban on gay marriage. He said no. He cited a few studies, as if they proved facts about the real world, by the plaintiffs' experts. Because of this, the law failed the rational basis test -- there was no possible logical link between the goals of Prop 8 and the means.

Imagine if the courts were to apply this approach to other laws. Did the stimulus and bailout bills in fact encourage economic growth? Do the illicit drug laws in fact increase health and reduce crime? Can we catch terrorists by monitoring their emails and phone calls without a warrant? One judge, armed with a few social science studies, could decide to overrule the considered judgment of the elected branches of government.

Why is this troubling? First, social science -- as anyone who reads these studies -- is far from a perfect science. There are so many variables and alternative explanations involved in understanding human interaction. I am dubious whether sociologists and psychologists can tell us the real causes and effects of gay marriage -- it has only been legal in the United States for a few years, and only in a few states. That is why my preferred solution of relying on federalism makes sense -- if states can choose different policies, we can learn from the information generated and understand the costs and benefits.

Second, what does this portend for other legislation built on moral intuitions? If gay marriage goes by the wayside because it is hard to measure a ban's effects, what about similar laws. Will Judge Walker invalidate the ban on adultery next? How about bigamy? Why not allow group marriages? What about the age limitations on marriage or sex?

Third why the limited use of this aggressive form of judicial review only on morals legislation? I think one reflection of the judge's activism here is that he subjects Prop 8 to a demanding standard, but would never apply the same review to economic legislation, where the utter irrationality of the government's regulations is far easier to see.

I respect the guy's intellect, but wow, is that just awful. First of all, the words "equal protection" do not appear. That's odd. Maybe he assumes the reader has a constitutional scholar's understanding of equal protection jurisprudence as a baseline, but that seems like a stretch.

Second, he says this about the equal protection test:

Imagine if the courts were to apply this approach to other laws.

Ummm, they do. Or at least they would,if someone challenged the law on equal protection grounds. The difference between Prop 8 (as argued before this court) and the other examples he cites is that Prop 8 is so remarkably pointless and stupid that nobody could offer a single rational basis by which the law achieved a legitimate end. The point isn't that one side offered social science studies to make their point ... it's that they did so, and the other side utterly failed to do so to demonstrate the rational basis. You could challenge health care legislation the same way, but a competent attorney would have no problem putting something before the court showing a rational basis to achieve a legitimate end, regardless of what you think of the wisdom of the law. And so the law would survive equal protection challenge.Every federal or state law that differentiates between groups of people (that is to say, pretty much every law) can be subjected to this level of scrutiny on legal challenge. That Yoo doesn't know that, or that he's willing to publicly write as if he doesn't, is a little sad.

I'd like to see how your resume stacks up with Yoo's.

 

[scoobygang]

I've read a lot worse from Yoo.

His thesis is wrong in that this isn't a sweeping decision, really. It follows pretty logically from Romer and Loving. By contrast, if we were to supply the same scrutiny to economic regulation, we'd have to overturn precedent at least as far back as Carolene Products and probably further (and it's important to point out that things like the stimulus would easily pass even this "rational basis with bite" standard, as has been pointed out).

 

[TobiasFunke]

John Yoo weighs in

I've now had a chance to read Judge Vaughn Walker's 138 page decision (for those interested, only the last 40 pages or so contain the important discussion of constitutional law).

It is a sweeping decision, not just on gay marriage, but for its elevation of the federal judges into arbiters of social norms and private morality. Judge Walker sees it as the job of the courts to test whether laws passed by a majority of the people, or a legislature, advance the public good as defined by expert testimony by social scientists. I'm more than happy if the government required that its own laws produce more benefits than costs. But do we want this job done by a single judge, or a small group of judges, relying on social science (in this case, the work of sociologists, psychologists, and political scientists produced to the court by the litigating parties) of a recent phenomenon?

Here's how it worked in the gay marriage case. Walker asked whether the goal of Prop 8 -- higher levels of marriage & less divorce, encouragement of procreation, social stability -- were achieved by a ban on gay marriage. He said no. He cited a few studies, as if they proved facts about the real world, by the plaintiffs' experts. Because of this, the law failed the rational basis test -- there was no possible logical link between the goals of Prop 8 and the means.

Imagine if the courts were to apply this approach to other laws. Did the stimulus and bailout bills in fact encourage economic growth? Do the illicit drug laws in fact increase health and reduce crime? Can we catch terrorists by monitoring their emails and phone calls without a warrant? One judge, armed with a few social science studies, could decide to overrule the considered judgment of the elected branches of government.

Why is this troubling? First, social science -- as anyone who reads these studies -- is far from a perfect science. There are so many variables and alternative explanations involved in understanding human interaction. I am dubious whether sociologists and psychologists can tell us the real causes and effects of gay marriage -- it has only been legal in the United States for a few years, and only in a few states. That is why my preferred solution of relying on federalism makes sense -- if states can choose different policies, we can learn from the information generated and understand the costs and benefits.

Second, what does this portend for other legislation built on moral intuitions? If gay marriage goes by the wayside because it is hard to measure a ban's effects, what about similar laws. Will Judge Walker invalidate the ban on adultery next? How about bigamy? Why not allow group marriages? What about the age limitations on marriage or sex?

Third why the limited use of this aggressive form of judicial review only on morals legislation? I think one reflection of the judge's activism here is that he subjects Prop 8 to a demanding standard, but would never apply the same review to economic legislation, where the utter irrationality of the government's regulations is far easier to see.

I respect the guy's intellect, but wow, is that just awful. First of all, the words "equal protection" do not appear. That's odd. Maybe he assumes the reader has a constitutional scholar's understanding of equal protection jurisprudence as a baseline, but that seems like a stretch.

Second, he says this about the equal protection test:

Imagine if the courts were to apply this approach to other laws.

Ummm, they do. Or at least they would,if someone challenged the law on equal protection grounds. The difference between Prop 8 (as argued before this court) and the other examples he cites is that Prop 8 is so remarkably pointless and stupid that nobody could offer a single rational basis by which the law achieved a legitimate end. The point isn't that one side offered social science studies to make their point ... it's that they did so, and the other side utterly failed to do so to demonstrate the rational basis. You could challenge health care legislation the same way, but a competent attorney would have no problem putting something before the court showing a rational basis to achieve a legitimate end, regardless of what you think of the wisdom of the law. And so the law would survive equal protection challenge.Every federal or state law that differentiates between groups of people (that is to say, pretty much every law) can be subjected to this level of scrutiny on legal challenge. That Yoo doesn't know that, or that he's willing to publicly write as if he doesn't, is a little sad.

I'd like to see how your resume stacks up with Yoo's.

So one can only disagree with people if they have equal or better qualifications they the person with whom they disagree? In that case, you should probably follow your own advice, and stop all disagreement with me on legal and political matters.

 

[timschochet]

I'd like to see how your resume stacks up with Yoo's.

This is the weakest form of argument. If you disagree with Tobias' rebuttal of Yoo, then please state your reasoning.

 

[dparker713]

John Yoo weighs in

I've now had a chance to read Judge Vaughn Walker's 138 page decision (for those interested, only the last 40 pages or so contain the important discussion of constitutional law).

It is a sweeping decision, not just on gay marriage, but for its elevation of the federal judges into arbiters of social norms and private morality. Judge Walker sees it as the job of the courts to test whether laws passed by a majority of the people, or a legislature, advance the public good as defined by expert testimony by social scientists. I'm more than happy if the government required that its own laws produce more benefits than costs. But do we want this job done by a single judge, or a small group of judges, relying on social science (in this case, the work of sociologists, psychologists, and political scientists produced to the court by the litigating parties) of a recent phenomenon?

Here's how it worked in the gay marriage case. Walker asked whether the goal of Prop 8 -- higher levels of marriage & less divorce, encouragement of procreation, social stability -- were achieved by a ban on gay marriage. He said no. He cited a few studies, as if they proved facts about the real world, by the plaintiffs' experts. Because of this, the law failed the rational basis test -- there was no possible logical link between the goals of Prop 8 and the means.

Imagine if the courts were to apply this approach to other laws. Did the stimulus and bailout bills in fact encourage economic growth? Do the illicit drug laws in fact increase health and reduce crime? Can we catch terrorists by monitoring their emails and phone calls without a warrant? One judge, armed with a few social science studies, could decide to overrule the considered judgment of the elected branches of government.

Why is this troubling? First, social science -- as anyone who reads these studies -- is far from a perfect science. There are so many variables and alternative explanations involved in understanding human interaction. I am dubious whether sociologists and psychologists can tell us the real causes and effects of gay marriage -- it has only been legal in the United States for a few years, and only in a few states. That is why my preferred solution of relying on federalism makes sense -- if states can choose different policies, we can learn from the information generated and understand the costs and benefits.

Second, what does this portend for other legislation built on moral intuitions? If gay marriage goes by the wayside because it is hard to measure a ban's effects, what about similar laws. Will Judge Walker invalidate the ban on adultery next? How about bigamy? Why not allow group marriages? What about the age limitations on marriage or sex?

Third why the limited use of this aggressive form of judicial review only on morals legislation? I think one reflection of the judge's activism here is that he subjects Prop 8 to a demanding standard, but would never apply the same review to economic legislation, where the utter irrationality of the government's regulations is far easier to see.

I respect the guy's intellect, but wow, is that just awful. First of all, the words "equal protection" do not appear. That's odd. Maybe he assumes the reader has a constitutional scholar's understanding of equal protection jurisprudence as a baseline, but that seems like a stretch.

Second, he says this about the equal protection test:

Imagine if the courts were to apply this approach to other laws.

Ummm, they do. Or at least they would,if someone challenged the law on equal protection grounds. The difference between Prop 8 (as argued before this court) and the other examples he cites is that Prop 8 is so remarkably pointless and stupid that nobody could offer a single rational basis by which the law achieved a legitimate end. The point isn't that one side offered social science studies to make their point ... it's that they did so, and the other side utterly failed to do so to demonstrate the rational basis. You could challenge health care legislation the same way, but a competent attorney would have no problem putting something before the court showing a rational basis to achieve a legitimate end, regardless of what you think of the wisdom of the law. And so the law would survive equal protection challenge.Every federal or state law that differentiates between groups of people (that is to say, pretty much every law) can be subjected to this level of scrutiny on legal challenge. That Yoo doesn't know that, or that he's willing to publicly write as if he doesn't, is a little sad.

Yoo's point seems to be that this decision may claim to have been using a rational basis level of scrutiny, but that it was infact using a significantly higher standard. And that subjecting all federal laws to such a heightened standard would lead to the invalidation of the vast majority of them.

 

[TobiasFunke]

Yoo's point seems to be that this decision may claim to have been using a rational basis level of scrutiny, but that it was infact using a significantly higher standard. And that subjecting all federal laws to such a heightened standard would lead to the invalidation of the vast majority of them.

If he wanted to do so, he didn't do a very good job of it. I think maybe you are applying your own reasoning to what the guy wrote, because I don't see any discussion of the varying tiers of scrutiny in his piece. I see slippery slope arguments and false statements about the inapplicability of rational basis equal protection analysis to all laws.

 

[CletiusMaximus]

John Yoo weighs in

I've now had a chance to read Judge Vaughn Walker's 138 page decision (for those interested, only the last 40 pages or so contain the important discussion of constitutional law).

It is a sweeping decision, not just on gay marriage, but for its elevation of the federal judges into arbiters of social norms and private morality. Judge Walker sees it as the job of the courts to test whether laws passed by a majority of the people, or a legislature, advance the public good as defined by expert testimony by social scientists. I'm more than happy if the government required that its own laws produce more benefits than costs. But do we want this job done by a single judge, or a small group of judges, relying on social science (in this case, the work of sociologists, psychologists, and political scientists produced to the court by the litigating parties) of a recent phenomenon?

Here's how it worked in the gay marriage case. Walker asked whether the goal of Prop 8 -- higher levels of marriage & less divorce, encouragement of procreation, social stability -- were achieved by a ban on gay marriage. He said no. He cited a few studies, as if they proved facts about the real world, by the plaintiffs' experts. Because of this, the law failed the rational basis test -- there was no possible logical link between the goals of Prop 8 and the means.

Imagine if the courts were to apply this approach to other laws. Did the stimulus and bailout bills in fact encourage economic growth? Do the illicit drug laws in fact increase health and reduce crime? Can we catch terrorists by monitoring their emails and phone calls without a warrant? One judge, armed with a few social science studies, could decide to overrule the considered judgment of the elected branches of government.

Why is this troubling? First, social science -- as anyone who reads these studies -- is far from a perfect science. There are so many variables and alternative explanations involved in understanding human interaction. I am dubious whether sociologists and psychologists can tell us the real causes and effects of gay marriage -- it has only been legal in the United States for a few years, and only in a few states. That is why my preferred solution of relying on federalism makes sense -- if states can choose different policies, we can learn from the information generated and understand the costs and benefits.

Second, what does this portend for other legislation built on moral intuitions? If gay marriage goes by the wayside because it is hard to measure a ban's effects, what about similar laws. Will Judge Walker invalidate the ban on adultery next? How about bigamy? Why not allow group marriages? What about the age limitations on marriage or sex?

Third why the limited use of this aggressive form of judicial review only on morals legislation? I think one reflection of the judge's activism here is that he subjects Prop 8 to a demanding standard, but would never apply the same review to economic legislation, where the utter irrationality of the government's regulations is far easier to see.

I respect the guy's intellect, but wow, is that just awful. First of all, the words "equal protection" do not appear. That's odd. Maybe he assumes the reader has a constitutional scholar's understanding of equal protection jurisprudence as a baseline, but that seems like a stretch.

Second, he says this about the equal protection test:

Imagine if the courts were to apply this approach to other laws.

Ummm, they do. Or at least they would,if someone challenged the law on equal protection grounds. The difference between Prop 8 (as argued before this court) and the other examples he cites is that Prop 8 is so remarkably pointless and stupid that nobody could offer a single rational basis by which the law achieved a legitimate end. The point isn't that one side offered social science studies to make their point ... it's that they did so, and the other side utterly failed to do so to demonstrate the rational basis. You could challenge health care legislation the same way, but a competent attorney would have no problem putting something before the court showing a rational basis to achieve a legitimate end, regardless of what you think of the wisdom of the law. And so the law would survive equal protection challenge.Every federal or state law that differentiates between groups of people (that is to say, pretty much every law) can be subjected to this level of scrutiny on legal challenge. That Yoo doesn't know that, or that he's willing to publicly write as if he doesn't, is a little sad.

I'd like to see how your resume stacks up with Yoo's.

Does anyone still consider Yoo anything other than a pure conservative shill? I'm not surprised he still gets published, but I don't think anyone takes him seriously anymore.

 

[dparker713]

Yoo's point seems to be that this decision may claim to have been using a rational basis level of scrutiny, but that it was infact using a significantly higher standard. And that subjecting all federal laws to such a heightened standard would lead to the invalidation of the vast majority of them.

If he wanted to do so, he didn't do a very good job of it. I think maybe you are applying your own reasoning to what the guy wrote, because I don't see any discussion of the varying tiers of scrutiny in his piece. I see slippery slope arguments and false statements about the inapplicability of rational basis equal protection analysis to all laws.

Why is me applying my own reasoning any more plausible than you applying your own reasoning?

 

[scoobygang]

Yoo's point seems to be that this decision may claim to have been using a rational basis level of scrutiny, but that it was infact using a significantly higher standard. And that subjecting all federal laws to such a heightened standard would lead to the invalidation of the vast majority of them.

If he wanted to do so, he didn't do a very good job of it. I think maybe you are applying your own reasoning to what the guy wrote, because I don't see any discussion of the varying tiers of scrutiny in his piece. I see slippery slope arguments and false statements about the inapplicability of rational basis equal protection analysis to all laws.

Rational basis equal protection analysis is applicable to (almost) all laws. There is a somewhat fair argument that in cases where there's a strong argument to use strict scrutiny equal protection analysis, courts have instead adopted rational basis analysis in a way that is far more searching than rational basis analysis has been adopted in other cases, particularly economic cases. It is a bit of a shortcut.

 

[TobiasFunke]

Yoo's point seems to be that this decision may claim to have been using a rational basis level of scrutiny, but that it was infact using a significantly higher standard. And that subjecting all federal laws to such a heightened standard would lead to the invalidation of the vast majority of them.

If he wanted to do so, he didn't do a very good job of it. I think maybe you are applying your own reasoning to what the guy wrote, because I don't see any discussion of the varying tiers of scrutiny in his piece. I see slippery slope arguments and false statements about the inapplicability of rational basis equal protection analysis to all laws.

Why is me applying my own reasoning any more plausible than you applying your own reasoning?

I was challenging Yoo's argument. I'm saying what you posted (about the court actually using a heightened level of scrutiny) was not in what Yoo was saying as far as I can tell, but is actually your own idea, and maybe you just saw something that wasn't there because it's what you think. If so, I don't know that I agree with you, but I certainly think that has more merit than what Yoo wrote. And it only took you two sentences to say it, too.If you think that's in what Yoo said, great. I'd be curious as to where you see it, though.

 

[TobiasFunke]

Yoo's point seems to be that this decision may claim to have been using a rational basis level of scrutiny, but that it was infact using a significantly higher standard. And that subjecting all federal laws to such a heightened standard would lead to the invalidation of the vast majority of them.

If he wanted to do so, he didn't do a very good job of it. I think maybe you are applying your own reasoning to what the guy wrote, because I don't see any discussion of the varying tiers of scrutiny in his piece. I see slippery slope arguments and false statements about the inapplicability of rational basis equal protection analysis to all laws.

Rational basis equal protection analysis is applicable to (almost) all laws. There is a somewhat fair argument that in cases where there's a strong argument to use strict scrutiny equal protection analysis, courts have instead adopted rational basis analysis in a way that is far more searching than rational basis analysis has been adopted in other cases, particularly economic cases. It is a bit of a shortcut.

But I don't think Yoo makes the claim that the court is applying heightened scrutiny. He may have intended to, but I don't see it. He doesn't speak to the conclusion I saw in the decision that there is an utter lack of a rational relationship to a legitimate end here- notice that he doesn't try to present one. I think the court was very, very careful to use those lower-tier words. So if someone wants to show that the court applied a heightened level of scrutiny, presumably you would want to show that the record before the court was sufficient to pass the rational basis test, thus the only conclusion is that the court must have raised the bar, right? But he doesn't do that or even say it.