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The most exciting C-Span proceedings… ever?
December 6, 2010 10:49 AM   Subscribe

C-SPAN airs Prop 8 appellate trial live. Prop 8 was the ballot measure that removed the right to marry from same-sex couples. Covered previously, previously, ZOMG PREVIOUSLY. Expect fun arguments about standing!
posted by klangklangston (139 comments total) 3 users marked this as a favorite

 
Davy Boies, Davy Boies, his pipes are playing. It's actually kind of a neat question over standing, on whether or not a lack of appellate action is de facto nullification by the state.
posted by klangklangston at 10:52 AM on December 6, 2010 [1 favorite]


Due to the trajectory this thread took, I am going to begin with saying 'FUCK! FUCK! GODDAMMIT!' and hope my mood improves from there.
posted by shakespeherian at 10:52 AM on December 6, 2010 [3 favorites]


I know what Prop 8 was (that horrible, evil thing), but can we get a bit of an update for background here? I feel like I've missed something, so please forgive my ignorance. What court is hearing the appeal? Will the verdict have repercussions just for California, or for the whole country?
posted by Faint of Butt at 10:56 AM on December 6, 2010


I'm listening to it now, and they're discussing the standing issue. I only understand about half the legalese, but I'm still annoyed.
posted by rtha at 10:57 AM on December 6, 2010


It's just the standing issue, right? Not the merits of either side? Anyone got a link to the filings?
posted by crush-onastick at 10:57 AM on December 6, 2010 [1 favorite]


Can't watch? Prop 8 Trial Tracker is providing live coverage, and has links there to twitter streams you can follow also covering the trial.
posted by hippybear at 10:57 AM on December 6, 2010 [1 favorite]


can we get a bit of an update for background here? I feel like I've missed something, so please forgive my ignorance. What court is hearing the appeal? Will the verdict have repercussions just for California, or for the whole country?

Metro Weekly has a great ten-item summary of "WTF is going on here?" including "what's so special," "What could the court rule," and "Outside of California, does this matter?"
posted by Tomorrowful at 10:57 AM on December 6, 2010 [6 favorites]


Also, the San Jose Mercury News is liveblogging it.
posted by rtha at 10:59 AM on December 6, 2010


It's the Ninth Circuit Court of Appeals, hearing an appeal of Judge Vaughn Walker's ruling that Prop 8 is unconstitutional under the US constitution. There's a lot of information in the "previously" links. Like, seriously, more context than you could ever want.
posted by klangklangston at 10:59 AM on December 6, 2010


This is the 3-judge panel selected at random from the 9th Circuit court. It has two parts -- argument of standing, and argument of merit. They're currently arguing standing. There may be a break between the two parts.

This trial is an appeal of the Judge Walker decision at the District level in California, which declared Prop 8 unconstitutional. The defendants in the appeal are those seeking marriage equality in California.
posted by hippybear at 11:00 AM on December 6, 2010


I actually sort of like standing arguments
posted by Sticherbeast at 11:01 AM on December 6, 2010 [2 favorites]


Okay, can anyone make a logical, rational, non-religious reason exactly why same-sex marriages absolutely must not be allowed?
posted by Old'n'Busted at 11:04 AM on December 6, 2010 [1 favorite]


The standing is kind of interesting, because it's a lot more up in the air and because it's kind of a weird gamble; it's a win for California if there's no standing for Prop 8, but it could be a win for the country if they do have standing. The legal wags I've been talking with assume that standing will ultimately be granted, which will have a pretty wide precedent effect (unless the Supreme Court holds that they decided standing incorrectly).
posted by klangklangston at 11:07 AM on December 6, 2010


I actually sort of like standing arguments

My favorite is hopping on one foot arguments, but those tend to require rather athletically inclined lawyers.

Okay, can anyone make a logical, rational, non-religious reason exactly why same-sex marriages absolutely must not be allowed?

Bigots are as bigots do.
posted by kmz at 11:07 AM on December 6, 2010 [2 favorites]


Okay, can anyone make a logical, rational, non-religious reason exactly why same-sex marriages absolutely must not be allowed?

In all the years I've been following this issue, I've never seen one.
posted by rtha at 11:08 AM on December 6, 2010 [2 favorites]


Is "slippery slope" logical and/or rational? It's the only non-religious reason I've heard.
posted by muddgirl at 11:10 AM on December 6, 2010


It wasn't clear in my first pass -- what link do I use to figure out what you guys mean by 'standing'?
posted by garlic at 11:12 AM on December 6, 2010


What side should I be rooting for?

Okay, can anyone make a logical, rational, non-religious reason exactly why same-sex marriages absolutely must not be allowed?

The only one I can think of is that it'll force religions to do something that's against their teachings. Even if that is true, I don't lose sleep over it.
posted by nomadicink at 11:14 AM on December 6, 2010


I think a more successful argument would be from the position of saying not that same-sex marriage absolutely must not be allowed, but that there's no reason to allow it, and then just make smaller arguments regarding anything proponents bring up about equal protections and etc.

I don't think there are any good arguments against marriage equality, but if I were lawyerin' it, that's what I'd do.
posted by shakespeherian at 11:14 AM on December 6, 2010


The only one I can think of is that it'll force religions to do something that's against their teachings.

I still don't quite understand this argument. Are rabbis forced to marry Baptists, etc.?
posted by Blazecock Pileon at 11:16 AM on December 6, 2010


I still don't quite understand this argument. Are rabbis forced to marry Baptists, etc.?

It's pretty low to compare homosexuals to Baptists.
posted by shakespeherian at 11:18 AM on December 6, 2010 [22 favorites]


It wasn't clear in my first pass -- what link do I use to figure out what you guys mean by 'standing'?

Ah, I see. Standing has to do with who is allowed, legally, to appeal the ruling. Since the governor and the attorney general declined to appeal the ruling that declared Prop 8 unconstitutional, the proponents of Prop 8 wanted to file the appeal. But it's an open question as to whether they have standing to do so. More on standing here.
posted by rtha at 11:19 AM on December 6, 2010 [1 favorite]


what link do I use to figure out what you guys mean by 'standing'?

Standing (law)
posted by hippybear at 11:19 AM on December 6, 2010 [1 favorite]


make smaller arguments regarding anything proponents bring up about equal protections

Such as... what? That you're against equal protections and rights under the law? In other words, pro-denigration and anti-voting-rights? I can't see any lawyer seriously taking that line of attack. The same can be said for "there's no reason to allow it".

Is "slippery slope" logical and/or rational?

No. It's a fallacy that is used to drag the topic into bullshit territory and the person using it knows it.
posted by Old'n'Busted at 11:21 AM on December 6, 2010


What side should I be rooting for?

Also, this. I sort of have this crazy wish that Prop 8 proponents are granted standing and then this goes to SCOTUS where it is quickly declared unconstitutional and then tomorrow I get a bunch of wedding invitations.
posted by shakespeherian at 11:22 AM on December 6, 2010 [1 favorite]


oh for crying out loud: pro-denigration == pro-segregation. wth?
posted by Old'n'Busted at 11:23 AM on December 6, 2010


Is "slippery slope" logical

No.

"Slippery slope" arguments usually presume that there's no way to step off the slippery slope, so to speak.

"Gays can't marry, because it's a slippery slope! Next thing you know, you could marry a coffee table!"

"No, I'm pretty sure we can design a system in which gays can marry and still prevent non-sentient furniture from entering into binding contracts."
posted by Cool Papa Bell at 11:23 AM on December 6, 2010 [9 favorites]


Can't watch? Prop 8 Trial Tracker is providing live coverage, and has links there to twitter streams you can follow also covering the trial.

That's not the reason I can't watch. Let me know when it's over, for better or for worse.

hides head in sand
posted by davejay at 11:23 AM on December 6, 2010


I still don't quite understand this argument.

The way I've heard it explained is that it's just the first step to government control of religion.
posted by nomadicink at 11:23 AM on December 6, 2010


That you're against equal protections and rights under the law?

That equal protections and rights don't apply to marriage because it's defined as blah blah blah. I didn't say it was a good line of argument, just that I think it's more successful than enumerating the evils of marriage equality, as they don't exist.
posted by shakespeherian at 11:24 AM on December 6, 2010 [1 favorite]


Wikipedia explains standing pretty well. Basically, standing is the idea that the litigant is entitled to have the court settle the merits of the case. Sometimes standing is present and obvious - the government took away your farm, but you think they did so unconstitutionally, so you sue to get your farm back. You lost your farm, it was the government that took away your farm, and the court could give you your land back if you prevail. You have standing.

OTOH, when Arizona passed that nutty "show your papers" law, I couldn't have just wandered into Arizona to sue to stop it. I'm a native citizen of the US, I don't live in Arizona, Arizona as a state has never done anything to me, blah blah blah, and most importantly, a court isn't going to declare a law unconstitutional just because some random dude doesn't like it, even if that random dude has an otherwise perfectly laid-out argument as to why he's right.
posted by Sticherbeast at 11:24 AM on December 6, 2010 [3 favorites]


nomadicink: "The only one I can think of is that it'll force religions to do something that's against their teachings."

If by "do something that's against their teachings" they mean "mind their own damn business," then yeah I can see how that would be a problem.
posted by brundlefly at 11:25 AM on December 6, 2010 [6 favorites]


This seems to say that if the appellates don't have standing, the ruling and prescendent only applies to California, not the rest of the Ninth District.
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 11:29 AM on December 6, 2010


There is a slippery slope argument. It goes something like this:

1) Proponents of same-sex marriage want them to be allowed on the because consenting adults should not be deprived of a legal status which other consenting adults are allowed to enter into. (Well they shouldn't be barred because of arbitrary reasons like sexual orientation, race, creed, etc.)

2) Allowing same-sex marriage lends legitimacy to this reasoning.

3) There are more types of marriages than two-person hetero and two-person homo partnerships.

4) Because of (2), Proponents of polyandry, for example, could argue that there is no reason for them to be barred from the legal status which currently excludes them for arbitrary reasons.

5) Because of (2) and (3) there is no reason to outlaw polygamy (of either stripe) or any version of multiple partner marriage (for more than two partners).

So, if you think multiple marriage is problematic for non-religious reasons, then same-sex marriage is a threat.

(I didn't say it's a great argument, but it is rational and non-religious.)
posted by oddman at 11:29 AM on December 6, 2010


shakespeherian: I know it's not you-you, it you-the-lawyer thing, and English sucks sometimes when it comes to making that clear. I knew in my head what I meant. Hell, I mangled segregation.

In any case, why do you think it would be a more successful line of argument?
posted by Old'n'Busted at 11:30 AM on December 6, 2010


"That sounds like a good argument for prohibiting divorce."

Best line of the whole proceedings.

Cooper is getting the shit kicked out of him by this bench and he knows it.
posted by Talez at 11:31 AM on December 6, 2010 [9 favorites]


Sticherbeast: "I actually sort of like standing arguments"

I make sitting arguments when I don't want the person on the other line to know I'm "arguing".

Oh wait, that's not what you're talking about huh?
posted by notsnot at 11:31 AM on December 6, 2010 [1 favorite]


Yeah, the whole "religions will be forced to marry people they don't want to marry!" seems awfully specious to me. A rabbi is not required to marry two Presbyterians. A pastor of a Pentecostal church is not required to marry Seventh Day Adventists.

In the states that do allow gay marriage, I'm unaware of any lawsuits that have been brought against religious institutions that have refused to perform wedding ceremonies for gay couples, even if those gay couples are members of that church/denomination/religion etc.

(Also, Charles Cooper's endless umms and ahhs are starting to drive me crazy.)
posted by rtha at 11:31 AM on December 6, 2010


If by "do something that's against their teachings" they mean "mind their own damn business," then yeah I can see how that would be a problem.

Well, churches tend to be all up in people's business, so that's probably where part of the conflict comes from. The controller doesn't like someone else controlling them.
posted by nomadicink at 11:34 AM on December 6, 2010


"OTOH, when Arizona passed that nutty "show your papers" law, I couldn't have just wandered into Arizona to sue to stop it. I'm a native citizen of the US, I don't live in Arizona, Arizona as a state has never done anything to me, blah blah blah, and most importantly, a court isn't going to declare a law unconstitutional just because some random dude doesn't like it, even if that random dude has an otherwise perfectly laid-out argument as to why he's right."

And this is one of the interesting differences between American and a lot of European law (specifically, Spanish, but others as well), in that here we have to have a direct harm in order for judges to decide an issue, whereas there they can simply be asked to investigate and rule on issues of law without having to find a specific case upon which the facts and merits can be decided.
posted by klangklangston at 11:35 AM on December 6, 2010 [2 favorites]


Heard a great note on the radio this morning, that the courts have always led the way in terms of civil rights. Loving v. Virginia effectively ended anti-miscegenation laws in the U.S.

But certain Christian religions actually came out before the Supreme Court ruling in support of this aspect of civil rights. The Presbyterian, Unitarian and Catholic churches in the U.S. all declared that race should play no part in marriage.
posted by Cool Papa Bell at 11:35 AM on December 6, 2010


Thanks for posting this -- I didn't realize it was being webcast live. Watching it this morning while taking care of some busywork.
posted by eugenen at 11:35 AM on December 6, 2010


Cooper is getting the shit kicked out of him by this bench and he knows it.

And it's being done in surprisingly plain, non-legalese. So much so that I wonder, like Old'n'Busted earlier, how people ever 'rationally' came to the conclusion that Prop 8 was a good idea.
posted by JohnFredra at 11:36 AM on December 6, 2010


oddman: The polyandy/polygamy was covered recently. The consensus was, imho, that this particular slippy-slope argument doesn't hold much watter.
posted by Old'n'Busted at 11:37 AM on December 6, 2010


The closest thing I can think of to Devil's Advocate arguments against same sex marriage are:

- I Now Pronounce You Chuck and Larry type situations where two straight bros (or two gals) enter into sham marriages for convenience. Sure, opposite-sex people can do the same thing already, but the sham-ness of the marriage is even higher if there is zero chance that the two straight gals (or two bros) will actually have romantic feelings for one another. On the other hand, gay men can marry gay women to receive the same level of sham-ness, so...what were we talking about again?

- The door being left open for legalized polygamy. Some people claim that Lawrence v. Texas kinda sorta did this, even though it didn't, really. This argument is a little bit stronger, but only barely, and the effect of having multiple spouses would radically alter laws of intestacy and such in ways that gay marriage never would. Polygamy is only superficially similar to gay marriage in the sense that we're entering into forbidden areas of intimate relations.

These arguments are not very strong, but there you go. The legal case against gay marriage is really, really, really weak - it has religious and cultural cache, not a firm Constitutional basis.
posted by Sticherbeast at 11:37 AM on December 6, 2010


Listening to Cooper make his arguments sounds like a hollywood portrayal of someone in court who is realizing how weak his position is even while he tries to defend it.
posted by hippybear at 11:39 AM on December 6, 2010 [3 favorites]


OTOH, when Arizona passed that nutty "show your papers" law, I couldn't have just wandered into Arizona to sue to stop it. I'm a native citizen of the US, I don't live in Arizona, Arizona as a state has never done anything to me, blah blah blah, and most importantly, a court isn't going to declare a law unconstitutional just because some random dude doesn't like it, even if that random dude has an otherwise perfectly laid-out argument as to why he's right.

Which is kind of stupid, and makes me wonder what the arguments were in the cases Wikipedia cites as the origin of the modern understanding of standing in the US. After all, in the situation you describe, the courts wouldn't be declaring a law unconstitutional because you don't like it. They'd be so declaring it on the grounds of the perfectly laid out argument as to why it's actually unconstitutional. Such an argument would not depend on the provenance of the person making it, so why should the courts attend to it? It seems to me that the effect of requiring standing is essentially conservative: you can have all the arguments you like on behalf of your position, but you can't do anything with them until you can find someone who has standing who's willing to bring the suit—thereby involving themselves in the process of the case, something likely to be rather inconvenient timewise and, if the matter is controversial, to bring them into the public eye.

"Prior to [the 1920s]", we read in Wikipedia, "the doctrine was that all persons had a right to pursue a private prosecution of a public right", which seems pretty damn reasonable to me. It's a public matter—I'm a member of the public—what matter if the law doesn't directly affect me? It affects the public sphere regardless.
posted by kenko at 11:40 AM on December 6, 2010 [1 favorite]


The only one I can think of is that it'll force religions to do something that's against their teachings. Even if that is true, I don't lose sleep over it.

It won't force such a change. The First Amendment thankfully carves out a very wide swath of protection for expressive activities, so the government can't regulate the content of people's religious or other beliefs. The only edge cases tend to be religious rituals that involve violence or producing a lot of waste via mass animal slaughter, and so far the courts have protected most examples of the latter.
posted by Inspector.Gadget at 11:40 AM on December 6, 2010


Okay, can anyone make a logical, rational, non-religious reason exactly why same-sex marriages absolutely must not be allowed?

The only one I can think of is that it'll force religions to do something that's against their teachings.

Except that isn't true.
The legal state of marriage is entirely a secular state matter, not a religious matter. One needn't appear in a church in order to have a valid marriage. No church would be required to perform a same-sex marriage. OTOH, I'm pretty sure many churches would, in fact, perform same-sex marriages. Free market forces, and all that.
posted by Thorzdad at 11:40 AM on December 6, 2010


Cooper: "Supremacy Clause? What the fuck is that?"
posted by Talez at 11:43 AM on December 6, 2010


Trying to find rational arguments against marriage equality is like finding rational arguments that the earth is flat. Ain't gonna happen, folks.
posted by kmz at 11:44 AM on December 6, 2010


So if standing is declined, is the required course of events then?

1) Gays go to anti-gay deputy clerk / clerk to get married
2) Bigot refuses
3) AG / Gov fires bigot
4) Bigot sues in state court, claiming that the Gov cannot require something contrary to the state constitution.
5) Some chain of state courts / federal district court operating under Walker's precedent.
6) The last of which is appealed to the 9th by a claimant (the fired bigot) who does have concrete personal harm.

That'll take years, lot of money, and change none of the substance of the case. Awkward. I guess that the Walker decision could be cited by people from other states claiming a split to get before the supreme court?
posted by a robot made out of meat at 11:44 AM on December 6, 2010


I Now Pronounce You Chuck and Larry type situations where two straight bros (or two gals) enter into sham marriages for convenience.

This isn't a rational argument, though, unless you find marriages of convenience that are not otherwise illegal to be immoral, and now we're starting to open the door to religious arguments again.
posted by muddgirl at 11:46 AM on December 6, 2010


This isn't a rational argument, though, unless you find marriages of convenience that are not otherwise illegal to be immoral, and now we're starting to open the door to religious arguments again.

Oh, I agree with you wholeheartedly that it's a thoroughly crappy argument. On the other hand, we have other areas in the law where sham marriages are frowned upon (such as in immigration), so that's the flimsy basis there.
posted by Sticherbeast at 11:48 AM on December 6, 2010


No church would be required to perform a same-sex marriage.

That's what the libruls want you to believe son. You gotta be smarter than that, think it through! This is just the first step in the homosexual agenda!

Seriously, these are arguments I've heard.
posted by nomadicink at 11:48 AM on December 6, 2010


If I were a better person, I would feel bad for Cooper, because he's not making any damn sense.
posted by rtha at 11:48 AM on December 6, 2010


3) AG / Gov fires bigot

3) AG/ Gov moves bigot to administrative position where he does not have direct contact with the public.
posted by schmod at 11:49 AM on December 6, 2010


I mean, he tried to argue that Prop 8 didn't take rights away from gay people. And then the judge said, but wasn't it legal for a period before Prop 8 took effect? Cooper is trying to make some very strange (to me) argument that since The People of California were the ones to vote in Prop 8, then nothing was taken away. Somehow. Or something. Very confusing.
posted by rtha at 11:51 AM on December 6, 2010


On the other hand, we have other areas in the law where sham marriages are frowned upon (such as in immigration), so that's the flimsy basis there.

It is illegal to enter a marriage solely for the purposes of obtaining immigration papers, so that would be illegal no matter the gender of the couple. I believe there are also cases of insurance fraud where a marriage could be invalidated. But again, these are illegal no matter the gender of the couple. Unless there is some credible evidence that a larger number of same-sex couples will enter illegal marriages than opposite-sex couples (doubtful), then I maintain that it's an illogical argument and thus does not meet what I shall now call the Old'n'Busted test.
posted by muddgirl at 11:54 AM on December 6, 2010


3) AG/ Gov moves bigot to administrative position where he does not have direct contact with the public.

I think that you have to have the clerk's stamp or some such, so it would require firing them. Even so, that transfer might be something actionable.
posted by a robot made out of meat at 11:55 AM on December 6, 2010


Or, it's a rational argument to end all marriage privileges all together, which as a married person I would be find with. No marriage privileges == nothing to illegally exploit.
posted by muddgirl at 11:56 AM on December 6, 2010 [2 favorites]


I mean, he tried to argue that Prop 8 didn't take rights away from gay people. And then the judge said, but wasn't it legal for a period before Prop 8 took effect? Cooper is trying to make some very strange (to me) argument that since The People of California were the ones to vote in Prop 8, then nothing was taken away. Somehow. Or something. Very confusing.

Cooper's argument appears to be that, since the people of California can enact legislation through referenda, then you can't declare Prop 8 unconstitutional, because it's just another referendum on a right not provided for in the Constitution. Within his logic: the people of California could not enact a Proposition to allow slavery, because that is expressly forbidden by the Constitution. On the other hand, the people of California could enact a Proposition to forbid Ski-Doos, because the Constitution is silent on one's right to own a Ski-Doo. Cooper views Prop 8 as being more like a Ski-Doo type of controversy.

...

but now he's talking about unwanted babies as being an argument against gay marriage wtf
posted by Sticherbeast at 11:59 AM on December 6, 2010


It's interesting how Cooper keeps throwing in the phrase, "invalidate traditional marriage." That's the quote that'll go in the donor newsletter. His base doesn't care about his actual argument.
posted by roll truck roll at 12:00 PM on December 6, 2010


Re: Same-sex vs. polyandry

Could we imagine any governmental definition of marriage that includes two people, excludes three, and still passes the Equal Protection test?

As in ...

Government: "Marriage is between a man and a woman."
Gays: "That's not equal protection."
Government: "OK, fine. Marriage is between two people."
Poly: "Wait, that's still not equal. I want to marry Bob and Dave."
Government: "Sorry, it is equal, because this type of contract is designed from the get-go to exist between two people only and doesn't unfairly exclude you."

I can't think of a kind of contract that can exist only between two entities and not a third.
posted by Cool Papa Bell at 12:04 PM on December 6, 2010 [1 favorite]


I started watching this at 1:10, about 10 minutes in. The three judges seemed pretty angry with the Pro-Prop 8 lawyers. Given their downright embarrassing performance in the earlier trial, I was somewhat surprised that they hadn't cleaned up their act.

Walker's ruling was a fairly thorough smackdown, and I'm not quite sure that the Pro-Prop 8 lawyers are even taking themselves seriously during these hearings. I've never heard quite so many one-liners and laughter in a courtroom.
posted by schmod at 12:07 PM on December 6, 2010


Oh goodness. Ted Olson just said that his argument is based on finding within the US Constitution a right to marriage equality under the 14th Amendment.

Or something like that. It kind of made my hair stand on end.
posted by hippybear at 12:08 PM on December 6, 2010 [1 favorite]


posted by roll truck roll It's interesting how Cooper keeps throwing in the phrase, "invalidate traditional marriage."

Indeed. If these folks were truly concerned about invalidating traditional marriage, they'd be trying to outlaw divorce.
posted by mattdidthat at 12:10 PM on December 6, 2010 [2 favorites]


The legal state of marriage is entirely a secular state matter, not a religious matter

Exactly this. Also consider the rules of common-law marriages (shack up for 7 years is basically it, varies from state to state).

"invalidate traditional marriage."

You mean the ones where the wife is sub-servant and stays in the kitchen, barefoot and pregnant? Because that's what I think of when someone trots this phrase out - that they want things all Stepford Wive-ish.

Wonder how Cooper feels about divorce?
posted by Old'n'Busted at 12:10 PM on December 6, 2010


Dammit matt!
posted by Old'n'Busted at 12:11 PM on December 6, 2010


In any case, why do you think it would be a more successful line of argument?

(sorry, I went to lunch) I think it would be a more successful line of argument because it's an argument about Constitutional language and purview, about which it is possible to have reasonable differences of opinion, as opposed to an argument about studies regarding societal ramifications such as how it affects the children or whathaveyou, about which, once a study is presented, it isn't possible to have reasonable differences of opinion. Basically any good argument that isn't based on facts has to be based on semantics.
posted by shakespeherian at 12:13 PM on December 6, 2010 [1 favorite]


It's a lot easier to be eloquent when you don't have to think two sentences ahead in order to make sure you don't say something horrifically homophobic.
posted by Doublewhiskeycokenoice at 12:13 PM on December 6, 2010 [9 favorites]


Actually, common-law marriage isn't really all that common.
posted by hippybear at 12:14 PM on December 6, 2010


Also consider the rules of common-law marriages (shack up for 7 years is basically it, varies from state to state).

Interestingly, one side-effect of the backlash against gay rights was that many states invalidated their own common-law marriage laws with constitution amendments against civil unions. That's what happened in Texas, at least.
posted by muddgirl at 12:15 PM on December 6, 2010


CPB: I can't think of a kind of contract that can exist only between two entities and not a third.

Pretty much any non-compete business contract would qualify, I think.

But your post made me think about current IRS filings and such; what would be the problem with claiming the 3rd party as a dependent? I did this for the mother in law when she was staying with us for a year a while back.
posted by Old'n'Busted at 12:16 PM on December 6, 2010


(I should state that AFAIK the effect of the Texas amendement banning anything "like marriage" has not been tested).
posted by muddgirl at 12:16 PM on December 6, 2010


Cool Papa Bell: A defensible phrasing would be "All adult persons have the right to marry one person at a time". That gives the same right to all classes of people. The court would have to decide seperately whether there is a right to multiple marriages. Marriage is not simply a contract between two people, it requires the state's involvement, and the state can regulate it up to the point that it infringes individual rights.
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 12:18 PM on December 6, 2010


Cool Papa Bell: One problem with poly marriage is assigning rights that can't be divided. This would be things like who has authority to make end-of-life decisions for which partner. In a two person case, it's clear who has the say about pulling the plug, but you get a stalemate if two partners have the same authority and disagree.

Those concerns can be addressed with thoughtful planning, but that's the same sort of thoughtful planning that poly couples have to go through now to arrange their affairs. Marriage wouldn't make that part easier.

Still, it isn't like we don't deal with this all the time with partnerships and LLCs, so it's not an insurmountable problem. The place where n-person marriages get really difficult, and perhaps unworkable, is where members are married to a member who is not married to all other members.
posted by Marty Marx at 12:18 PM on December 6, 2010 [2 favorites]


That happened in South Dakota too. Same-sex marriage aside, a major problem with ballot initiatives is that they're often written to be short and punchy. Incorporating them into law seems to cause collateral damage sometimes.
posted by roll truck roll at 12:19 PM on December 6, 2010


Old'n'Busted: "Also consider the rules of common-law marriages (shack up for 7 years is basically it, varies from state to state)."

Not in Ohio. Our anti-gay constitutional amendment threw common-law marriages out just to prevent the possibility of there being gay marriage.
posted by charred husk at 12:22 PM on December 6, 2010


an argument about Constitutional language and purview

Okay, I admit I'm not a Constitutional scholar by any stretch, but for the life me, I cannot see how one could begin to argue using this. From what I recall from SCOTUS in the past, this always came off as verbal hair-splitting.
posted by Old'n'Busted at 12:22 PM on December 6, 2010


Regarding polygamy: I don't think the Equal Protection argument would really work here. What classification of people is being discriminated against here? Even if we were to come up with a good definition for that argument, I could easily see anti-bigamy laws surviving rational basis scrutiny.
posted by Sticherbeast at 12:23 PM on December 6, 2010


Indeed. If these folks were truly concerned about invalidating traditional marriage, they'd be trying to outlaw divorce.

Or Bridalplasty. Because nothing says 'I value the tradition of marriage' like wanting to get your "buttface" fixed for your husband-to-be before you walk down the aisle.
posted by raztaj at 12:23 PM on December 6, 2010


...
5) Because of (2) and (3) there is no reason to outlaw polygamy (of either stripe) or any version of multiple partner marriage (for more than two partners).


considering that polygamy IS a form of gay marriage (for at least two of the partners, anyway), wouldn't you think that the mormons would be all inf favor of repealing prop 8? ~^
posted by sexyrobot at 12:26 PM on December 6, 2010


The place where n-person marriages get really difficult, and perhaps unworkable, is where members are married to a member who is not married to all other members

Okay, who else thought of Phlox from Enterprise?
posted by Old'n'Busted at 12:27 PM on December 6, 2010


Pretty much any non-compete business contract would qualify, I think.

Yeah, but that's an agreement between you and your old company. If your old company wants to go after the new one, they can sue for tortious interference of the contract that exists, not breach of contract (because there isn't one between the companies).

A defensible phrasing would be "All adult persons have the right to marry one person at a time". That gives the same right to all classes of people.

That makes sense, on the phrasing level.
posted by Cool Papa Bell at 12:28 PM on December 6, 2010


verbal hair-splitting

Well that's what I'm talking about. I'm just saying you would stand a chance of getting anywhere, as opposed to the nowhere that the Prop 8 proponents got by arguing direct harm.
posted by shakespeherian at 12:29 PM on December 6, 2010


Is a 9th circuit judge seriously arguing that separate but equal should be acceptable in the arena of marriage?

How come Olson isn't slapping this down with "well why don't we have white and coloured water fountains?".
posted by Talez at 12:31 PM on December 6, 2010


Cooper is getting the shit kicked out of him by this bench and he knows it.
posted by Talez at 2:31 PM on December 6


And this right here is why televising appellate hearings is a catastrophe in the making.

When you televise a hearing, you introduce into the hearings something that was not there: an audience. The normal hearing is the lawyers and the judges. Add TV, and now everyone, lawyers and judges, are playing to the crowd.

The briefs on both sides of this case were filed months ago. But there was no liveblogging of the briefs. That's where the arguments are, that's where the innovative legal thinking is. Hearings are for probing subtleties in the arguments, not for re-hasing the arguments in the briefs. Hearings pick up where the briefs left off.

But now we have an audience. The culturally refined intellect of the average American cable-TV viewer, their minds used to the penetrating dialogues on Fox News and The Daily Show, need more than some droll Q & A between members of the bar. For this hearing to matter to us, we need to contextualize it as a spectacle - an event. The audience can't be bothered or expected to understand what is going on in the hearings, and the audience certainly hasn't read the briefs or the precedent cited therein, but also there is no attempt to educate the people about these issues. Lacking the ability to gauge the merits of an advocate's legal argument, the audience views the dispute as a conflict of personalities/identities. The bench is "kicking his ass". And we need form our conclusions about the case in "real-time" based on this hearing.

Law is a considered profession. Lawyers and judges are supposed to deliberate over the issues, the consequences, and the meaning of the law before coming to a decision. That's why there are months between hearings and decisions.

Instead, the process is being transformed by some imperative for speed. Things need to happen immediately and in rapid succession so that there is no time to think or reflect. As has happened in finance and politics, law is now succumbing to "sportsification." I wonder how long before some cable network somewhere starts providing color commentary, "Good use of precedent! Oh no, he's resorted to a strawman argument!"

"It's interesting how Cooper keeps throwing in the phrase, "invalidate traditional marriage.""

He's "throwing" that in there precisely because this hearing is a spectacle presented for the benefit of the invisible audience. He knows his supporters are watching, so he says it for their benefit. The audience hears him as the defender of "traditional marriage," and if the decision comes down against him, the audience will see that as the judge clearly ruling against traditional marriage. Because what happens in the briefs is unseen by the audience, AND because they chose to show the audience the hearing, all that will matter to the public is the hearing.

The question you should be asking is, if the hearing weren't televised, would he be saying it? The answer is no. And the same goes for everything everyone else is saying at that hearing.
posted by Pastabagel at 12:31 PM on December 6, 2010 [12 favorites]


From what I remember, the argument for Proposition 8 wasn't on any of these slippery-slope rationales. It was that the State of California has a right to discriminate against same-sex marriage in the promotion of traditional family structures WRT children. The right to discriminate in the interest of children trumped the equal protection clause of the U.S. Constitution.

Judge Walker rejected this line of argument. The defendants for Proposition 8 failed to demonstrate that the State of California had an interest that was more important than the equal protection clause. Therefore California is obligated to issue marriage licenses equitably to same-sex and mixed-sex couples.
posted by KirkJobSluder at 12:31 PM on December 6, 2010


I agree with kenko, what's the benefit of the standing rule? If something's wrong, why must I be personally injured by that wrong to bring it up to the courts?
posted by garlic at 12:33 PM on December 6, 2010


It was that the State of California has a right to discriminate against same-sex marriage in the promotion of traditional family structures WRT children. The right to discriminate in the interest of children trumped the equal protection clause of the U.S. Constitution.

That's also not a logical argument in that there's no evidence of harm in allowing same-sex couples to raise a kid. So nope, doesn't pass the Old'n'Busted test.
posted by muddgirl at 12:36 PM on December 6, 2010


If something's wrong, why must I be personally injured by that wrong to bring it up to the courts?

If anyone could challenge any law, all laws would be challenged. The courts have limited resources, so they only hear cases from people who have standing.
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 12:38 PM on December 6, 2010 [1 favorite]


The question you should be asking is, if the hearing weren't televised, would he be saying it?

I'm not a lawyer or anything, bit it seems like you just made the argument that I wouldn't know the difference.
posted by JohnFredra at 12:43 PM on December 6, 2010


Did anyone else just stand up?
posted by carsonb at 12:45 PM on December 6, 2010


Standing also helps keep issues in the court more concrete. If you bring a suit, without demonstrating sufficient connection to the law or event and the harm arising from the event or enforcement of the law, your arguments are exponentially more speculative. Our courts are not in the business of advisory opinions. That is, they don't tell you in advance how a law should be enforced or how a theoretical case should be decided. They (in theory, at least) only look at the case as it comes before them, find the relevant facts out of the evidence presented, and make the best argument for what appears to be the proper conclusion in that case.

If the litigant is only superficially or theoretically connected to the particular law in question, its application, or a harm arising from the law and its application, the court is reasoning on very shaky ground, indeed.
posted by crush-onastick at 12:51 PM on December 6, 2010 [2 favorites]


muddgirl: That's also not a logical argument in that there's no evidence of harm in allowing same-sex couples to raise a kid. So nope, doesn't pass the Old'n'Busted test.

Well, logical and supported by evidence are two different things. The defendants' case is a legal argument that's accepted in cases where there's overwhelming evidence of a state interest. I don't buy the defendants' case either, but I think it needs to be taken more seriously because a decision for Prop. 8 will be on that basis. Slippery slope of religious celebrations of same-sex marriage are not an issue.
posted by KirkJobSluder at 12:52 PM on December 6, 2010


Instead, the process is being transformed by some imperative for speed. Things need to happen immediately and in rapid succession so that there is no time to think or reflect.

What? Because of TV, or because there was a time limit? SCOTUS hearings are not televised, but things have to move along at a pretty good clip because each side has a time limit.
posted by rtha at 12:53 PM on December 6, 2010


The question you should be asking is, if the hearing weren't televised, would he be saying it? The answer is no. And the same goes for everything everyone else is saying at that hearing.

Oh, I don't know. I've followed this case pretty closely, and was even reading the daily transcripts of the trial as they were made public earlier this year. That trial was not made available on video at all, so people weren't being affected by the presence of cameras.

Cooper's style is to find phrases and use them repeatedly. In the transcript itself, there are several times when he embarks along a phrase but misses a word, and he pauses and goes back and makes sure to get the phrase exactly right. The transcript pretty much captures his fumbling nature, too. Olson and Boies are both come across as being able to weave full complex clear arguments through their words. What I saw today on television completely fulfilled what I had pictured, more or less, about the way these men handled themselves in the courtroom.

I really don't know how much the presence of cameras really affected any of it. But if you want a point of comparison, here is the transcript [pdf] of the closing arguments before Judge Walker earlier this year.
posted by hippybear at 12:54 PM on December 6, 2010 [3 favorites]


If something's wrong, why must I be personally injured by that wrong to bring it up to the courts?

If anyone could challenge any law, all laws would be challenged.


And then really silly pointless laws that had no effect one way or the other would get struck down, and we'd have to eliminate an entire question category in Balderdash.
posted by LionIndex at 12:57 PM on December 6, 2010


"And this right here is why televising appellate hearings is a catastrophe in the making.

When you televise a hearing, you introduce into the hearings something that was not there: an audience. The normal hearing is the lawyers and the judges. Add TV, and now everyone, lawyers and judges, are playing to the crowd.
"

Well, except you're wrong. Having read the transcripts of the original trial, which was not televised, the rhetoric and grandstanding were there as well. Appellate trials often, especially if they are of compelling public interest, have a packed gallery and press. Further, arguing that somehow the participants are motivated by the massive audiences garnered by C-Span in the middle of the afternoon is ludicrous.

"The briefs on both sides of this case were filed months ago. But there was no liveblogging of the briefs."

That's true, only in that there was blogging of the briefs, but as the briefs do not change over time, there was no liveblogging. But to imply that as a lack of interest in the briefs is nonsense.

"But now we have an audience. The culturally refined intellect of the average American cable-TV viewer, their minds used to the penetrating dialogues on Fox News and The Daily Show, need more than some droll Q & A between members of the bar."

Ah yes, because non-lawyers might see this and not fully understand it, we should prevent them from seeing it, because they have no hope of learning nor of grasping any salience from these arguments. Sorry, that's bullshit. This case is of public interest, therefore the public should be able to see it. There's a long, and correct, tradition of public trials and law here in America, and modern Americans are no stupider than Americans of the past.

"The audience can't be bothered or expected to understand what is going on in the hearings, and the audience certainly hasn't read the briefs or the precedent cited therein, but also there is no attempt to educate the people about these issues."

This is flat specious bullshit spun out of your assumptions and denigrations of the audience, and has no basis in fact or reason.

"Instead, the process is being transformed by some imperative for speed. Things need to happen immediately and in rapid succession so that there is no time to think or reflect. As has happened in finance and politics, law is now succumbing to "sportsification." I wonder how long before some cable network somewhere starts providing color commentary, "Good use of precedent! Oh no, he's resorted to a strawman argument!" "

Yes, the ever-accelerating legal world! Where this case has been going since, what, the 2008 elections? Clearly, a blinding pace that leaves no room for consideration! And C-Span certainly plays to that impulse, by providing riveting coverage of the recesses, in which people in suits mill around. But wait, what if there was a cable channel that had color commentary of court cases? There was, but now it's called TruTv and mostly runs Operation Repo shows. This doom-saying has been around for nearly twenty years, and it takes a fair bit of question-begging to conclude it's been in any way correct.

"The question you should be asking is, if the hearing weren't televised, would he be saying it? The answer is no. And the same goes for everything everyone else is saying at that hearing."

Except that they did say it at the untelevised hearings. So, you're full of shit, man, sorry.
posted by klangklangston at 12:58 PM on December 6, 2010 [15 favorites]


Well, logical and supported by evidence are two different things.

Remember: We're not talking about the Walker ruling or the state of gay marriage in california - we're responding to Old'n'Busted's question. With that given, let's take another look at the (stupid, monumentally stupid) argument raised by defendants of Prop 8.

The statement "Children will be harmed if they are raised by gay parents" assumes that gay couples are definitionally worse at child-rearing than straight couples, without stating any particular reason why. It also ignores (on the side of straight families) single- and divorced-parents, neither of which are apparently in the state's interest to prevent; and (on the side of gay families) gay couples who live with or co-parent with someone of the opposite gender (which is apparently not in the state's interest to promote).

Are there any non-religious reasons why gay couples in general are worse at childrearing than straight couples in general? If not, it fails the Old'n'Busted test.
posted by muddgirl at 1:06 PM on December 6, 2010 [1 favorite]


"The audience can't be bothered or expected to understand what is going on in the hearings,

Did I miss some of the finer points, like when certain cases were cited? Yes. But to say that those of us who bothered to tune in "Can't be bothered or expected" to educate ourselves is insulting and unfounded.

I read the briefs. I read the transcripts from the original trial (the pdfs are still on my ipod). I read a lot of legal blogs (and discussions here) and followed a lot of links. I'm sorry I didn't shell out $150K for a law degree so that I could meet your standard of understanding or education, but I will bet you $10 that I have a better understanding - legally speaking - of the issues addressed in this hearing than the JD whose practice consists solely of, say, personal injury suits, or intellectual property cases.

The question you should be asking is, if the hearing weren't televised, would he be saying it? The answer is no. And the same goes for everything everyone else is saying at that hearing.

Did you even bother to read the transcripts of the original trial?
posted by rtha at 1:15 PM on December 6, 2010 [1 favorite]


Besides preserving judicial resources and keeping the issues more concrete, another reason for the standing rule is to make sure that litigants have a stake in winning, and do a good job of arguing their side. (Or at least to encourage it a little.)

As mentioned above, it's common in Europe for it to be the judge's job to investigate and come to the truth. It's also common for past decisions not to be binding precedent in those jurisdictions. (They're referred to as "civil law" jurisdictions, as opposed to our "common law" system. Anyway.)

In America, our strategy is for two opposing sides to zealously advocate their position, and for the judge more or less to just pick between them. Then the judge's decision is binding to some extent on all the decisions that come after. This arrangement reflects our system's lesser trust of authority -- the judge is constrained, and the litigants have more power. Under an adversarial, precedential system like ours, it would be bad news if you could bring a case you didn't care about and lose it on purpose just to establish the precedent, so the standing rule is designed to make sure you care about winning your case.

It might be notable that many state courts (who don't have the standing rule written into their constitutions) consider it more advisory than mandatory -- they can ignore it if they have a good reason. The Supreme Court, on the other hand, has interpreted the standing rule extremely strictly. (One view would be that it's a way for pacifist judges on that Court to avoid having to do anything; another is just that the Constitution arguably requires it.)

Hopefully I'm oversimplifying just the right amount to be helpful here ...
posted by jhc at 1:16 PM on December 6, 2010 [3 favorites]


Sorry, that's bullshit. This case is of public interest, therefore the public should be able to see it. There's a long, and correct, tradition of public trials and law here in America, and modern Americans are no stupider than Americans of the past.

Actually it isn't bullshit, so can your false populist rhetoric. You're not prevented from seeing anything. The trial and the appellate hearing were both public. The public could go and watch it in person. What the public could not do is watch it on TV because TV distorts absolutely everything it shows without exception. The reason for this is that the audience in a courtroom is limited in both number and in the kinds of people who are there - press, interested people, other lawyers, most of who are familiar with the arguments in the case or the kinds of arguments that can come up. On TV the audience swells to hundreds of thousands. And what do they do when they watch this decontextualized performance of law? The critique the performance. "So and so got his ass kicked" "so and so mumbles or stutters, etc." Furthermore, this is all they will see of the case. They will not see the briefs, nor will they see the appellate courts opinion (unless C-SPAN is going to treat us to a reading). So unlike the audience in a court, which understands that what they see in only a part of the legal process (and not even the most important), the audience at home, which greatly outnumbers the educated observers of the case, will come to expect the outcome of the case to turn on the part they heard.

In other words, what the audience does at home watching on TV is exactly like what they do when they watch a reality show - they judge. Except in law, society has decided that the people are not in a position to judge, so it has hired judges to do it for them.

This is flat specious bullshit spun out of your assumptions and denigrations of the audience, and has no basis in fact or reason.

This is the same audience that watches Fox News. The same audience that believed Iraq was behind 9/11. The same audience that thinks 9/11 was a govt conspiracy. The same audience that made Glenn Beck a millionaire, Howard Stern a millionaire, and Rush Limbaugh a millionaire. It's the same people.

Except that they did say it at the untelevised hearings. So, you're full of shit, man, sorry.
posted by klangklangstonPoster at 3:58 PM on December 6


Really? In the transcript of the untelevised hearing, the phrase "traditional marriage", which is what I was referring to, appears ONCE, when Cooper was reading verbatim a piece of evidence. In the appellants' brief, the phrase "traditional marriage" NEVER APPEARS. Contrast this with the commenter above saying that he "keeps throwing it in".
posted by Pastabagel at 1:32 PM on December 6, 2010 [2 favorites]


Did you even bother to read the transcripts of the original trial?
posted by rtha at 4:15 PM on December 6


Yes. Do you realize I'm drawing a distinction between someone arguing in defense of what we would generally call traditional marriage by way of convoluted arguments about procreation, religion, etc. at the trial, and that person invoking those arguments implicitly through the use of the soundbite "traditional marriage" at this televised hearing. There is no use of the soundbite in the untelevised trial BECAUSE THERE ISN'T ANY SOUND TO MAKE THE SOUNDBITE FROM. But the moment you put something on television, you create create the incentive to use soundbites. You create the incentive in attorneys and judges to try to communicate with or for the audience at the same time, because the person has already communicated directly with the judge on paper beforehand.

If all of you are irked by my generalizations about the stupidity of TV audiences, then let me clarify the matter by distinguishing between two groups of non-lawyer viewers within that TV audience. The first group is the people watching on TV because it's a hot-button topic. If these people didn't know that these hearings were preceded by briefs, this case isn't going to cause them to learn, and if this argument wasn't on TV, they wouldn't even know about it until long after it happened. The second group are the stakeholders, people who have some vested emotional or other interest in the outcome of this particular case. If gay marriage is something important to you, then you are a stakeholder.

My comments do not apply to you if you are a stakeholder. Happy now?
posted by Pastabagel at 1:47 PM on December 6, 2010 [1 favorite]


I don't think you mean to suggest that your BeckSternLimbaughites don't have a "vested emotional interest" in the outcome.
posted by Rat Spatula at 1:50 PM on December 6, 2010


The statement "Children will be harmed if they are raised by gay parents" assumes that gay couples are definitionally worse at child-rearing than straight couples, without stating any particular reason why.

This was a bit unfair of me. The stated reason is that "Children deserve to be raised by their biological father and biological mother", but clearly the state is already negligent in protecting this interest (by allowing divorce, adoption, and single-parent households). Alternately, they could allow gay marriage but require same-sex couples to co-parent any biological kids with the biological mother or father, which would satisfy the states interest and protect the rights of adults to marry who they chose.
posted by muddgirl at 1:59 PM on December 6, 2010


My comments do not apply to you if you are a stakeholder. Happy now?

and

This is the same audience that watches Fox News. The same audience that believed Iraq was behind 9/11. The same audience that thinks 9/11 was a govt conspiracy. The same audience that made Glenn Beck a millionaire, Howard Stern a millionaire, and Rush Limbaugh a millionaire. It's the same people.

I am not any of these people, and I can guarantee you that a lot of people who watched or listened to today's hearing are also not any of these people. So maybe lay off the vast and inaccurate generalizations of who was among the television audience for this. Liberals watched. Lawyers watched. Gay people watched. Christians who believe gay marriage is a-okay watched.

and if this argument wasn't on TV, they wouldn't even know about it until long after it happened.


If by "long after" you mean "When Fox covers it on the talking head shows tonight," then I guess you're right. Or if they followed any one of the zillion liveblogs out there. Or read blogs like the Volokh Conspiracy (and judging by the comments there, an awful lot of the commenters are neither lawyers nor liberals).

Coverage of the non-televised Prop 8 trial was immediate and widespread. Nobody who had the vaguest interest in the issue had to wait more than a couple of minutes to see what was happening. And reading the briefs beforehand was not required.
posted by rtha at 2:05 PM on December 6, 2010


Lawyers and judges are supposed to deliberate over the issues, the consequences, and the meaning of the law before coming to a decision. [...] Instead, the process is being transformed by some imperative for speed.

I see where you're coming from, but actually many, if not most appeal proceedings are recorded for audio and/or video now, at least in the 9th circuit. This is becoming more and more the norm - as a soon-to-be law student it's enormously interesting. As for the speed thing, with only 30 minutes for each side, this is entirely normal; most cases are only 20 minutes per side because that's all that's needed. The contentious style and so on is a mode of argument, and not really a good guide to how the panel will rule.

The question you should be asking is, if the hearing weren't televised, would he be saying it? The answer is no. And the same goes for everything everyone else is saying at that hearing.

Would that were true, but you can find quite spirited discussions in obscure cases as well as high-profile ones. For example, Richard Posner questions an DoJ attorney - an exchange bearing a disturbing resemblance to this.
posted by anigbrowl at 2:14 PM on December 6, 2010


East Manitoba Regional Junior Kabaddi Champion '94 If anyone could challenge any law, all laws would be challenged. The courts have limited resources, so they only hear cases from people who have standing.

This deserves repetition. People who are questioning the idea of standing as a prerequisite for litigation are presumably only thinking of their own perfectly reasonable objections to obviously unreasonable laws. If anyone could bring a lawsuit, lots of people would.

The major limiting resource of legal systems is time. The consequences of this are many and obvious, so I won't list them out. Standing is above all else a time saver. If the matter is serious enough, it will presumably affect at least one person with standing. If the commitment of the would-be litigants to litigating the matter is serious enough, they will presumably be able and willing to find at least one affected person (or person-like entity, such as Imperial County) with standing, who can be asked, convinced, cajoled, paid, even bribed into being the name on the case and therefore satisfying the requirement of standing.

Which is what the present question, "do opponents have standing?" is about. It's easy, trivial even, for proponents of same-sex marriage to find people with standing. Any given same-sex couple denied marriage, obviously. But it's actually quite difficult for opponents of gay marriage to find someone adversely affected by the law. Imperial County is an enforcement entity, ie it grants or denies marriage licences, and this function is clearly affected by the law, so the county might have standing, but it is very questionable as to whether the actual content of the rules under which they grant or deny marriage is something that affects them. The only adverse effect I can think of is mere workload increase, and for an entity that issues licenses to be entitled to sue over changes in the legislation under which they issue licenses merely on the basis of increased workload seems very, very dubious, especially given the relatively low time-dependent urgency of the issue of marriage licenses and the relatively low amount of time required to process one ("let's see your IDs, OK you sign here and you sign here, let me stamp and sign here, there you go, congratulations").

I'm interested to know if a person or entity beneficially affected by a law has standing to appeal its validity. If so, perhaps a couple of Log Cabin Republicans could marry, and then appeal the validity of their own marriage, an exercise in hypocrisy so obvious that surely ... oh, who am I kidding, if that has any chance of working they'll be trying it next month.
posted by aeschenkarnos at 2:16 PM on December 6, 2010 [1 favorite]


I call horsehockey on your assertions, Pastabagel. Just as with restriction of speech, I assert that the positive aspects of opening up the process to view significantly outstrips the downsides.

At least Rehnquist opposed televising things based on a concern about out of context clips being used to make rhetorical points. I certainly see his point (though I again think the "more speech" solution of unedited available footage is the solution) even if I don't think it's a good enough reason to limit transparency. Your opposition, on the other hand, pivots on an assertion of inevitable grandstanding (again, I disagree) and the viewing by unwashed masses unable to understand what's going on.

It stinks to high heaven of elitism, and I'd be shocked if you found it a compelling justification for, say, limiting access to medical research because those doctors are WAY better educated than you and it's best if we avoid the possibility you misinterpret things.
posted by phearlez at 2:21 PM on December 6, 2010


Hmm on further thought it wouldn't be difficult to pick out an adverse effect or two within the generally beneficial status of marriage: Fred, married to Larry, is now able to enter into contracts binding on Larry; Fred signs an apartment rental contract; Larry declares himself unwilling to live in that apartment; Fred pays his half of the bond and rent; the landlord sues Fred and Larry. Larry is now adversely affected by his marital status.
posted by aeschenkarnos at 2:22 PM on December 6, 2010


Cool Papa Bell: A defensible phrasing would be "All adult persons have the right to marry one person at a time". That gives the same right to all classes of people.

The problem with that phrasing is that it implies that a law phrased "All adult persons have the right to marry one person of the opposite sex" would also give the same right to all classes of people and thus non-discriminatory.
posted by straight at 2:25 PM on December 6, 2010


That, and standing discourages people from just filing for every law that they dislike on a matter of principle, or lack thereof when it comes to the religious right. For one thing it demands that the people filing suit must be in the jurisdiction of a law.
posted by KirkJobSluder at 2:34 PM on December 6, 2010


Polygamy may be a difficult problem for marriage law but it isn't insoluble. Seems to me the easiest approach is to subclassify polygamous marriages: harem (traditional polygamy, one husband married to several wives, who are not fully married to each other); multi-corner (mutual marriages of equal strength among all members); and plural ("stronger" sub-marriages joined in a greater marriage). I'm probably missing other options.

Harem marriage is quite common in history and geography and there are plenty of real-world examples of courts and legislatures addressing property, custody, etc matters in cultures where it is allowed. A state wishing to legalize harem marriage can take the best and most culturally acceptable rulings from these cases as the starting point for their own Act. There may be some differences with child status, rearing, custody etc under the one wife/many husbands model that do not exist under the one husband/many wives model, but broadly speaking these differences will be cultural rather than logical and the genders should be reversible in the arrangement.

The major problem of multi-corner marriages, I think, is conflicting equal rights, and it seems to me that the best resolution there is to require the participants to address it in the marriage contract, or if for some reason they do not, to resolve the inequality by some easily decided and not-obviously-unfair rule, such as time sequence of marriage or if the marriage was simultaneous, in descending order of age. (Which isn't obviously fair either, but it has the advantage of being clear.)

Plural marriages and similar arrangements (eg wife and acknowledged mistress) hardly need to be addressed at all under marriage legislation; the primary spouse should have primacy for decision-making--this is what "primary" implies--and any secondary "spice" should have rights enumerated in wills, prenuptials, contracts, leases etc as would any other person contracted with outside of a two-person marriage. The legal rights of "illegitimate" offspring are well-established already.
posted by aeschenkarnos at 2:48 PM on December 6, 2010


If the litigant is only superficially or theoretically connected to the particular law in question, its application, or a harm arising from the law and its application, the court is reasoning on very shaky ground, indeed.

So basically it's like ChatFilter questions on AskMe. Got it.
posted by Zozo at 2:54 PM on December 6, 2010


It's not remotely surprising if Cooper uses words and phrasings at argument that don't appear in the briefing. You argue differently, less formally, more personally at oral argument than you do in a brief. It's your chance to make a different, sometimes more common-sense, or more emotional, appeal than you do on paper. Not everything you say has to have a citation after it. Done well, you make the judges see the briefed arguments in a different light. Done poorly, you wrap yourself in the axle and start repeating pat phrases and nonsense that doesn't respond to the judges' questions.

It's not necessarily about it being televised because there's always an audience -- your client (who is probably present), your colleagues (ditto), strangers listening/watching/reading later. In the end, all that matters is the judges. The rest is the normal theatre you get with any legal proceeding.
posted by *s at 2:58 PM on December 6, 2010


It stinks to high heaven of elitism, and I'd be shocked if you found it a compelling justification for, say, limiting access to medical research because those doctors are WAY better educated than you and it's best if we avoid the possibility you misinterpret things.
posted by phearlez at 5:21 PM on December 6



God forbid if appellate constitutional law be considered elite. But I am not at all arguing about access to hearings. Again, you can attend any hearing you want.

But when you put something on TV, even a start-to-finish live broadcast, the entire thing is out of context


The rest is the normal theatre you get with any legal proceeding.
posted by *s at 5:58 PM on December 6


This is where I disagree. Television is unique in its scope, its force, and its potential to alter our conception of reality. I think when you put something on TV--not radio, not audio, not transcripts, but TV--you do not get normal theater. You get extraordinary theater.
posted by Pastabagel at 3:19 PM on December 6, 2010


The problem with that phrasing is that it implies that a law phrased "All adult persons have the right to marry one person of the opposite sex" would also give the same right to all classes of people and thus non-discriminatory.

The real problem is, why is government involved with "marriage" in the first place. Everything about the pure governmental part of marriage could be replaced with language defining civil unions. But for some reason we have a hodgepodge of civil unions and marriage, with a chaotic system of what rights go with what law.

It's nuts. One of the few roles of government, IMO, is the enforcement of contracts. Can we at least just simplify the language? ;-)
posted by Cool Papa Bell at 3:25 PM on December 6, 2010 [2 favorites]


You get extraordinary theater.

What does that mean? The point about television being a game-changer is valid as to political candidates trying to win elections or televangelists -- they've found a new medium to speak to their audience. You would have more of a point for a trial, particularly a jury trial with huge political import. But the appellate attorney's audience is the court. The television viewer is not the target audience any more than the audio feed listener or the transcript reader. The attorney that tries to pander to that audience with sound bytes will fail in the job of persuading the court with law and fact. "Extraordinary theater" is not compatible with the competent practice of appellate advocacy. The court wants to hear about standing. Television audiences may want to hear about lots of things, but I suspect standing is not one of them.
posted by *s at 3:44 PM on December 6, 2010


Television is unique in its scope, its force, and its potential to alter our conception of reality.

I agree with this, mostly. But the rest of the reasons you gave above for why it's bad to televise trials do not follow. They are, in fact, illogical and elitist (I mean, you argue that the audience is a bunch of ignorant Fox-watching nimrods who don't care about the case. What?). I agree that cameras may encourage a kind of performance that would be absent without cameras, but I don't know how different the performance-in-front-of-cameras is from performance-in-front-of-live-audience.

People line up to see Supreme Court arguments, and there is no way that all of them are versed in the case being argued, or even give a shit about it. It's a historic thing to see, and they want to be able to say they've seen it.
posted by rtha at 3:45 PM on December 6, 2010


One of the few roles of government, IMO, is the enforcement of contracts.

I agree. But marriage is not really a contract. It's a somewhat useful metaphor in certain contexts. But in the legal context, it really isn't helpful at all to refer to marriage as a contract.
posted by The World Famous at 3:46 PM on December 6, 2010


But when you put something on TV, even a start-to-finish live broadcast, the entire thing is out of context.

I agree. But that is the problem for TV and its audience, not for the court. I somewhat agree with you about the risks, and am deeply ambivalent about televising trials because it's hard not to recall the circus that the OJ Simpson trial became. But in appellate court you're dealing with professional jurists, all of whom are presidential life appointees and, I suspect, rather less easily impressed by the prospect of fame; and whose decisions will have to stand solidly on the quality of their legal reasoning as viewed by their peers.

Given the rampant ignorance in society about the basic functioning of the legal process, I'm cautiously in favor of anything that makes discussions even slightly more reality-based. For example, viewers who saw this on TV will at least come away with the knowledge that legal appeals do not typically involve witnesses giving testimony.
posted by anigbrowl at 4:01 PM on December 6, 2010


The problem with that phrasing is that it implies that a law phrased "All adult persons have the right to marry one person of the opposite sex" would also give the same right to all classes of people and thus non-discriminatory.

I disagree. Every time you add a restriction to the law based on a individual's characteristic, it discriminates against something. The word "adult" is discriminatory towards children who wish to get married, but we have a rational basis for that discrimination. As Walker found, there is no rational basis for factoring gender into the marriage laws, and to do so has the effect of discriminating against homosexuals.

This lack of rational basis is closely related to the fact that a gay marriage is not qualitatively different to many straight marriages, such as those in which the participants are infertile or do not wish to have children. But a non-exclusive civil marriage is qualitatively different to an exclusive civil marriage. For example, it would assign spousal rights to multiple people who could contradict each other. Or, it could allow unlimited financial benefits to participants in large communities of spouses. I think it can be treated as a separate right. But even if it can't, there could easily be a rational basis for the discrimination.
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 4:27 PM on December 6, 2010


This is where I disagree. Television is unique in its scope, its force, and its potential to alter our conception of reality. I think when you put something on TV--not radio, not audio, not transcripts, but TV--you do not get normal theater. You get extraordinary theater.

Do you mean video or just TV? Either way I think this is an absurd statement, but I'm curious.
posted by wildcrdj at 5:09 PM on December 6, 2010


Can anyone who actually watched the hearings today summarize how it went?
posted by auto-correct at 5:55 PM on December 6, 2010


The judges didn't treat the pro-equality people with kid gloves, but they were very aggressive towards the anti-equality people. I get the impression that they will find that the appellants have no standing, or that they will ask the California Supreme Court for a ruling on whether the appellants can appeal the constitutionality of a state law.
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 6:02 PM on December 6, 2010


This "flash analysis" over on Calitics is interesting. This part jumped out at me:

Judge Smith focused a couple times on whether the State of California was in a worse position for having passed Prop 8 because it has given all of the same rights and privileges under the auspices of the domestic partnership statute. In other words, if we are only fighting over a word, and no substantive differences at the state level, aren't we essentially creating a subclass? And roughly transcribed, here's what Cooper said:

Cooper: The word is the institution. If you redefine the word, you change the institution.

I actually think this was a big moment of the oral argument. It said that yes, the anti-equality forces were there only to “put down” gays and lesbians, or as San Francisco Deputy City Attorney Therese Stewart said (again, this is my rough notes here)

If the word is the institution, then the argument is just that gays and lesbians would “Stain” the institution. The fact that Prop 8 is symbolic, it makes the insult obvious. This is classification for its own sake, and it violates the equal protection clause. Taking these components together, it infers animus.

posted by rtha at 6:59 PM on December 6, 2010 [2 favorites]


I think Cooper is right there, but it's not just symbolic. Marriage opponents use these amendments to challenge benefits and rights at every level. If same-sex partnership is a different institution, then the equivalence between same-sex partnership and legal marriage can be challenged at every turn.
posted by KirkJobSluder at 7:29 PM on December 6, 2010




This is just the first step in the homosexual agenda!

Exactly.
posted by ericb at 8:42 PM on December 6, 2010


Wonder how Cooper feels about divorce?

2010 California Marriage Protection Act -- "make divorce illegal in California." [Video].

2012 California Marriage Protection Act (aka Resuce Marriage).
posted by ericb at 8:55 PM on December 6, 2010


*Rescue Marriage*
posted by ericb at 9:00 PM on December 6, 2010


God forbid if appellate constitutional law be considered elite.

Oh poop, nobody is claiming that the people practicing the law should not be well-educated professionals. The only person shitting on those folks is you when you claim they're incapable of resisting the siren song of performing for the camera rather than staying focused on convincing the people actually hearing the case. Personally I have more respect for the folks who operate on that level and I think it's sad you don't.

But I am not at all arguing about access to hearings. Again, you can attend any hearing you want.

But when you put something on TV, even a start-to-finish live broadcast, the entire thing is out of context


So you're okay with people getting to see the goings-on so long as they have the location, mobility & free time to go sit in the hearing in person - not to mention the status/pull to get one of the limited seats available - but everyone else shouldn't be able to see the process because they could only do it if it's televised.

You are absolutely arguing about access to hearings, and you're doing it in what is the textbook definition of elitism: tying access to money & power and attaching moral value to it. You assert that those folks with the free time and ability to get to the court are the ones who are properly capable of doing the advance research, being aware of the facts of the case, and not taking it out of context.

Please. It's just as possible to walk in and sit down in the courtroom while being completely ignorant of the context of what's going on. The quantity of folks in there who are informed is a mere side-effect of the limited access and scarcity, not a feature. In defense of that side effect you're willing to limit the public's access to matters being decided in their name and which may have serious impact on their lives.
posted by phearlez at 8:00 AM on December 7, 2010 [1 favorite]


Really? In the transcript of the untelevised hearing, the phrase "traditional marriage", which is what I was referring to, appears ONCE, when Cooper was reading verbatim a piece of evidence. In the appellants' brief, the phrase "traditional marriage" NEVER APPEARS. Contrast this with the commenter above saying that he "keeps throwing it in".
posted by Pastabagel at 4:32 PM on December 6


That is true: he did use that exact phrase extensively in those two documents. But in the linked transcript untelevised hearing he did use a number of variations, viz:
"the traditional definition of marriage"
"traditional intact family"
"traditional understanding of marriage"

He did not, as far as I've found, use any variations in the brief.
posted by cjelli at 8:39 AM on December 7, 2010


That is true: he did use that exact phrase

Did NOT, rather. Sigh.
posted by cjelli at 8:53 AM on December 7, 2010


The only person shitting on those folks is you when you claim they're incapable of resisting the siren song of performing for the camera rather than staying focused on convincing the people actually hearing the case. Personally I have more respect for the folks who operate on that level and I think it's sad you don't.

As someone who appears in court on a regular basis and has argued appellate cases, I can assure you that you're giving the legal profession more credit than it deserves. Unfortunately, even when there are no cameras, there is a huge number of lawyers who can't seem to resist the siren song of putting on a show for their client and the gallery rather than staying focused on convincing the people actually hearing the case. Much of the time, I get the impression that a lawyer who knows he's losing is more likely to put on a big show, perhaps to convince his client that he did all he could and that the judge and/or jury was just wrong.
posted by The World Famous at 11:15 AM on December 7, 2010


As someone who appears in court on a regular basis and has argued appellate cases, I can assure you that you're giving the legal profession more credit than it deserves. Unfortunately, even when there are no cameras, there is a huge number of lawyers who can't seem to resist the siren song of putting on a show for their client and the gallery rather than staying focused on convincing the people actually hearing the case.

I don't dispute that the performance artists are out there. I simply dispute that the addition of television will overwhelm anyone who isn't already infected with that disease. The fact that you see it happen in the absence of television indicates that it's not the root cause.

Mind you, I do not reject completely the idea that the folks arguing this Prop 8 case are now more in the grandstand & appease the base mindset than they are really expecting to win. However, again, that's not something that happens because there's television. People have interests that go beyond the win/lose decision of the case. Television doesn't change that. Is it possible they can now stump more directly to their supporters? Sure. But calling it a cause and using it as a justification to prevent the public from seeing the sausage being made is too much.
posted by phearlez at 12:47 PM on December 7, 2010




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