David Limbaugh isn’t usually one of my favorite columnists, but he’s put his finger firmly on the flaws of the Prop 8 decision by Judge Walker:
He seeks to deconstruct (and then reconstruct) the definition of traditional marriage by describing its constituent elements and showing how those elements can be applied equally to heterosexual marriage and same-sex marriage, thus concluding there is no difference between the concepts. It’s as if he compared my DNA with any of yours and concluded that because 99.9 percent of human DNA is the same in everyone, you and I are the same person.
Walker takes the various principles the courts have enunciated through the years concerning marriage and the right to marry, labors to show there’s no logical reason to differentiate in the application of these principles between heterosexual marriage and same-sex marriage and, presto chango, concludes that these legal precedents demand that the definition be changed to conform to his worldview.
All the while, he denies he’s changing anything.[Emphasis Added]
He states, for example, that “marriage has retained certain characteristics throughout the history of the United States.” It requires that two parties “give their free consent to form a relationship, which then forms the foundation of a household,” and that “the spouses must consent to support each other and any dependents.”
He cites case law affirming that “the state regulates marriage because marriage creates stable households, which in turn form the basis of a stable, governable populace,” and that “the state respects an individual’s choice to build a family with another and protects the relationship because it is so central a part of an individual’s life.”
Because he believes these statements can be applied equally to homosexual unions, such unions, in his opinion, also fit our concept of marriage. The problem with that is that he can’t artificially extend to homosexual unions ideas that were, by their context, intended to apply only to heterosexual marriage.
The fact that two types of unions contain certain similar attributes does not negate the fact that at their core, those unions are fundamentally different. For example, just because heterosexual unions also include the free consent of both parties doesn’t mean the court can be read to have equated those unions to heterosexual marriage.
And the Examiner Editorial Board points out that the good Judge’s objectivity on this topic isn’t above reproach:
Yet, this latest decision marks the third time Walker has been rebuked by appellate courts since he was appointed to the federal bench by President Reagan. Earlier this year, after Walker required disclosure of Prop 8 supporters’ internal communications, the Ninth Circuit cut him off by issuing a highly unusual writ of mandamus directing him to stop what would clearly be an excessive and unnecessarily intrusive discovery process. That the higher court used such a writ — defined by Black’s Law Dictionary as indicating a failure to “perform mandatory or purely ministerial duties correctly” — is suggestive of the appeals panel’s opinion of Walker’s jurisprudence. The second instance came shortly thereafter when the U.S. Supreme Court blocked Walker’s plan to televise the proceedings in his courtroom prior to issuing his ruling. Had he been allowed to proceed, the case would have become little more than a circus.
*Leans back against the open doorway, causally swinging a ball bat. Patiently waiting on the cast of usual knuckleheads to show up and demonstrate exactly how brilliant they aren’t.
Dick, you truly are an original.LMAO.
Ah, so the truth about “objectivity” begins to leak out. Good thing I am coming here – you’ll never hear a word about this across the normal channels.
Good one BIC.
“Marriage has retained certain characteristics throughout the history of the United States”.
What, no mention of the fact that marriage between a man and woman has been one of those “certain characteristics”?
I was arguing with someone on Facebook about this subject a few weeks ago.
She was breathlessly proclaiming that homosexuals were being denied a “fundamental right”. Sensing that her knowledge of the subject was no deeper than the shallow end of the kiddie pool, I asked her which fundamental right to which she was referring. Her response was “the right of contract, for one”.
I suggested that she Bing “Lord Blackstone” and review his commentaries on the laws of England, as it was the first serious codification of the commonlaw of England (nearly all of which we retained, after rejecting the crown), and I acknowledged that while he indeed described marriage as a contract in the subsection titled “Husband and Wife”, it was also clearly understood that Husband and Wife meant male and female, and that the definition she and others were trying force upon marriage never would have been accepted, as sodomy was considered a felony throughout almost all of western civilization at the time. I suggested she find antoher example. She clammed up, and hasn’t engaged me again.
Patiently waiting on the cast of usual knuckleheads to show up and demonstrate exactly how brilliant they aren’t.
And you do this by cursing at them, is that how you demonstrate their lack of brilliance? I know I’m new here, so there may be more to it. I’m just asking because that’s all I’ve seen thus far from the anonymous “Dick.”
Dan,
My eggs were a bit runny this morning. Could you please tell your mother that I really don’t like them this way?
I see, so you demonstrate their lack of brilliance by cursing vulgarities at them AND making “yo mamma” jokes? Is there more to it or is that the sum total of your brilliance-busting?
Oooooo Dan you don’t want to go there. Dick has a wood chipper with your name on it.
BiW, I’ll be back later when I can absorb this better. I will give you this much credit, many of your posts are impossible to just skim. You always try to go deep.
THAT’S WHAT SHE SAID!
(or perhaps “THAT’S WHAT HE SAID” is more appropriate to the topic)
Since I haven’t read Walker’s full opinion I’ll respond to this assuming that Limbaugh’s analysis is correct.
[Unfrozen Caveman Lawyer Mode On]
I’m just an ordinary lawyer from a far off place. Your rules puzzle and confuse me. …
When we have to create new case law, is it not appropriate to deconstruct what has come before, analyze it, and then reconstruct it so that we can apply the same legal principles to the new thing by seeing its similarity to the old thing?
To toss out gay marriage without examination is irresponsible. It is intellectually lazy and I would even say legally immoral.
So what do we do? We take hetero marriage and we examine its defining elements, only one of which is the juxtaposition of gender. Then we look at all the other elements, mutual respect, love, caring, protection, devotion, etc etc. We then find that gay marriage has more in common with hetero marriage than it has different.
So we then apply the law as it relates to what we are familiar with (hetero marriage) to what we are unfamiliar with (gay marriage).
I don’t see why that is not a perfectly correct approach to the law.
[Unfrozen Caveman Lawyer Mode Off]
Don’t give up your day job.
1. The place of the Court is to apply existing law to the facts, not to change the definitions of legal terms in order to support a favored conclusion.
2. I’d tell you to read the case before you try to pontificate on the analyses of others who have, but I’m not sure that it would make any difference in this case as the truly glaring errors in procedure and reason are too closely related to conclusions that mirror your opinion for you to discern the mistakes.
3. Clear definitions in law are vital to the continuity of an orderly society. They provide predictability, which is absolutely necessary for people to go on about their business in a daily fashion with the understanding that the clarity will also lead to a predictable result in litigation. When judges tamper with legal definitions to support their own biases, they exceed their own authority and usurp the role of the legislative branch because they are making law rather than interpreting it.
4. Some of the judge’s “findings of fact” were nothing of the sort, as they included issues that were not before the Court and not up to the judge to determine.
BTW, if the terminology bothers you so … how bout we mandate that all justices of the peace say:
“I now declare you GAY married.”
That way, the unmodified “married” can retain its traditional definition.
Ahhh haaa!!! It didn’t take too long into this thread to get to the core issue.
OK, here’s the solution. Let’s mandate that all male gay couples sign a pledge only to mutually masturbate …. no butt play whatsoever.
Happy now?
Ventilation must never be a problem for you, what with the point rushing right past you like that. Must be quite a breeze that is personal to you and you alone.
What Dan doesn’t understand is that, 1. He’s a communist troll, and 2. I don’t have a soul and an unbridled hatred for all things ‘Stalin’.
Dan, the only thing you could every possibly be good for is fertilizer, or maybe fish food.
Enjoy your disease while you can, sparky.
What about target practice?
Of course I jest Dan, I would shoot you…
We need people like you, otherwise, who’d clean the latrine?
Wow, Freudian or what, that was suppose to be wouldn’t…
Communist? Where has that topic even come up?
Being a Christian, I believe to a degree in the notion of Christian communities sharing all things in common, as is talked of in the book of Acts in the Bible, in taking care of one another, the strong helping the weak and the weak helping the strong each in their own way.
But Communism as an economic system implemented by a gov’t? No, thanks.
Or does it make sense for me to try to make logical sense of what you’re saying, is that besides the point?
On the flip side, I rather DO hope to make good fertilizer one day. I sorta hoped to be wrapped up in an old no-good blanket one day and buried in the woods and thus, become one with Creation.
Fish food would be cool, too. And only fair, since I have eaten my share of fish. I’m not picky that way.
Either way, I appreciate the vote of confidence. Thanks!
Well BiW, you may be a good student of law, and even a good practitioner but you’re a lousy teacher since you didn’t really address my comment.
When we discuss the legal merits of something relatively new, why is it not appropriate to compare it to something similar upon which we already have established case law? To do that comparison you must deconstruct the things being compared to see where the similarities lie.
In your eagerness to call me a legal amateur (guilty as charged by the way) you neglected to really address the question. We don’t need to redefine marriage if we modify it by the adjective “gay” and then discuss the similarities.
Contrary to what my esteemed friends on this board have said more than once, marriage is not fundamentally about child bearing. Unmarried couples bear children every day, and in our shifting morality, these couples are not even frowned upon anymore. Marriage is about much more than a biological partnership leading to children. It is fundamentally about companionship, and legally it is about financial beneficiaries. So your preoccupation with definitions allows you to evade the bigger questions.
Focus on the second paragraph of this comment and tell me what I’ve got wrong.
Rutherford, Christian marriage was originated to provide a legal platform supporting the safety net for the survivors (or, in your terminology “financial beneficiaries” ) when it came to issues resulting from the death of the (then) holder and manager of a family’s wealth and resources. Thus, it is important that established law be followed and not manipulated to conform to current special interest demands. New law has already been inculcated, in the form of “civil contracts”, to address most, if not all of the legal issues produced by same-sex unions and/or the unwed with children.
“Unmarried couples bear children every day, and in our shifting morality, these couples are not even frowned on anymore”. Sir, you certainly do not speak for me – or many of the people that I know – when you make a statement such as this. Indeed, the burdens for society, legally, socially and financially, that are produced by children born out of wedlock have been increasing exponentially for decades. I am surprised that you so blithely dismiss this destructive lifestyle.
Perhaps in your eyes marriage is defined by “companionship”, but for others it may well include such things as love, commitment, fidelity and responsibility to family members.
Seems to me that BIW addressed your question most thoroughly in paragraph #3 of his reply.
I am surprised that you so blithely dismiss this destructive lifestyle.
He’s a liberal. He is genetically incapable of recognizing the harm that these attitudes have, and even if he did recognize the failures that these attitudes contribute to, his answer would be to redouble his efforts against the moral beliefs that these attitudes chip away at with nary a thought that the effects might be linked to the permissiveness.
Yes, I did address your comment.
Marriage has had the same specific legal defintion, that being a relationship between a man and a woman.
Placing “gay” in front of the word “marriage” changes the definition of the term.
Secondly, if you are going to introduce something “relatively new” in to law, the place to do that is through the legislative process, which in states like Cal-i-forn-ia and Washington includes the referendum process. This process was observed, but it was the Court that saw fit to discover a heretofore unrecognized and unheard of fundamental right to marry regardless of gender.
It is not the role of the judiciary to deconstruct and reassemble that which is in order to give us that which never was, especially since the Judge had to pretty much make up the authority to support his extraordinary action.
and legally it is about financial beneficiaries.
If you are talking about children, yes. If you are talking about spouses, notsomuch any more…no fault divorces and 30+ years of women working alongside men in the workforce have created a legal climate where there is a very real expectation that any maintenence is temporary, if it is to exist at all, unless you are dealing with a much older couple that would have married with the very different expectation that the wife was to be provided for by the husband.
“I rather DO hope to make good fertilizer one day.”
Let’s shoot for sooner rather than later. You being a good Christian and all.
I’m gonna go watch some porn.
To Mainenowandthen and BiW … regarding out of wedlock pregnancies, I get the feeling you think I’m referring to a child being raised in a one parent household. That was not what I meant at all. I am referring to the increasing trend of men and women deciding to be life partners, have children, and never get married. In this case, marriage is not about child bearing since a committed couple can have a child outside of marriage.
Also, Maine, you need to read what I write better. I didn’t just say marriage was about companionship. I said it was about “mutual respect, love, caring, protection, devotion”.
Maine, you started your analysis with the words “Christian marriage”. I’m not talking about Christian marriage, nor is Prop 8. There is no reason on God’s green Earth why any church should be forced to marry two men or two women. If Christianity views homosexuality as an abomination, then by all means, refuse to marry same sex couples. That has NOTHING to do with civil marriages.
Perhaps, as I have stated elsewhere, the government should get out of the marriage business and issue civil union licenses to everyone, hetero or homo, who seek them. Then we can leave the holy matrimony to the churches to handle as they please.
Finally, BiW you took my financial beneficiary comment and went down the divorce route with it. I was not referring to divorce. I was referring to widows and widowers who receive insurance proceeds, and any thing else willed to them by their deceased loved one.
Finally, BiW you took my financial beneficiary comment and went down the divorce route with it. I was not referring to divorce. I was referring to widows and widowers who receive insurance proceeds, and any thing else willed to them by their deceased loved one.
RED HERRING ALERT!!!!!
Seriously, R. Why didn’t you throw in the “rights to see each other in the hospital and make medical decisions for each other” argument? It was quite effective here in Washingtonistan last year when they were lobbying Olympia for the Registered Domestic Partnership Act, depsite being as genuine as a three-dollar bill.
Insurance: If you have life insurance or an insurance product like an annuity, it goes to the beneficiary that you select, and in many cases, you can even change that designation. It doesn’t go to a spouse unless you make that designation.
Bank/Brokerage Accounts: If you want the bank account to go to your “Significant Other”, then YOU can make them a Joint Tenant With the Right of Survivorship (JTWROS) or make a Payable On Death (POD) designation when you set the account up.
Your Earthly Possessions: If you want your SO to inherit some or all of your stuff? Do it like everyone else and designate that in your WILL. Spouses do not automatically just get your stuff when you die, unless you have executed a Community Property Agreement. You die without a will, your state’s laws on intestate succession will govern the disposition of your estate. In community property states like mine, that would entitle the survivor to the deceased’s share of the community property, but if there was no community property or no community property agreement (either of which could be possible in a second marriage) then the spousal share could be less than half, depending on the other statutory heirs surviving the deceased. The only way ANY ONE can be sure that their stuff will be divied up is to excute a WILL making your intentions clear.
Visitation Rights/Medical Decisions:
Again, being married does not automatically confer these rights in a lot of jurisdictions. But all doubt can be erased the same way “straight” people do it: Execute a Medical Power of Attorney and Durable Power of Attorney. My wife has mine, I have hers. And the doctors and nurses know that they don’t have any liability concerns for following the directions I have left them on the subject.
Forgive me for taking your “financial beneficiary” remark in the wrong direction. It was the only one that made sense from my perspective.
However, since you raised the topic of living together rather than getting married, do you have any idea the increased cost to society in Court time that we have incurrred because people have been so casual in their relationships that they haven’t bothered to committ to? Suzy and Sammie don’t get married, so when Suzy’s breasts start to sag, and he can’t watch the game in peace because Sammie and Suzy Junior make noise, Sammie thinks there is nothing to lose by moving on, so he packs some clothes and moves in with Sandra Sweetthing a few doors down.
Suzy now has no income, and the trailer isn’t even in her name. She goes to the welfare office, where the kind social worker interviews her and says “No problem. We’ll sue his dirtbag ass and establish paternity (if the laws of the state do not presume it) and then we will establish a child support schedule and garnish his wages.
Who pays for this “justice”? You and I do, and it has a considerable cost. Can this happen to married people too? Yes, it can, but marriage is also a committment. That won’t matter to some people, who like Democrats, will single-mindedly pursue whatever makes them feel good, but shame, despite all liberal attempts to kill it, is not quite dead, and therefore some people might also be pressured by the potential of society’s disapproval, to keep their commitments and make and maintain a home and a life for their families.
I know, you probably don’t care, or don’t believe it, but I see it played out time and again whenever I go to Court.