sundries

[rm]

No German practice yesterday. Too much news. Too much laundry. Patty was very sweet with me in my news frenzy place. Tonight though it's all Project Runway. And hopefully some more Buffy. We want to finish Buffy and Angel before Patty heads to Cardiff and then do remote movie dates for Being Human.

Woo, Click-n-Ship from Duchess.

For those, presumably not from the US or California or really, really not paying attention, or just really over-excited on Twitter, a few details:

1. No same-sex legal marriages can take place in CA right now. There is a stay which will probably remain in place as this thing goes through the 9th Circuit and on to the Supremes. This could take years.

2. The US has not legalized gay marriage.

3. There is no guarantee of what will happen in the Supreme Court (because of the purpose of the 9th Circuit, that should be no problem), although yesterday's ruling was extremely, extremely cleverly reasoned and incredibly legally sound. It's a remarkably strong document.

4. DOMA is still on the books.

5. Other than momentum and hope, today is exactly like yesterday.

Please do read the ruling. It is a remarkable document that is profoundly philosophically feminist and has some remarkable things to say about gender. Reading the ruling gave me chills. It was like an "I was promised flying cars" moment with Actual Flying Cars, not because it's the first big step towards the legalization of same-sex marriage in this country, but because of what it says about gender and marriage in general. That felt like the future.

Hey, while we're here, if you don't think same-sex marriage should be legal; if you don't think the issue is essentially about the state's recognition or not of my humanity; if it's vitaly important to you to refer to me as "a homosexual" as if I were an object of study or a disease; if you don't understand the purpose of the judiciary in this country (which is yes, to make law and make sure law conforms to the constitution); if you have an actual problem with the 14th and 17th amendments, you can leave now. I'm not your minstrel show, and I'm not some illogical liberal/woman/homosexual; you just failed civics class. I mean it. Out out out.

There is, predictably, not a ton of other news on my radar this morning, although Elena Kagan is expected to be confirmed to the Supreme Court today.

Less annoying than the Tom Hardy thing: Joseph Gordon-Levitt in The Advocate. Really, it's a fabulous funny little interview.

Comments

[hoyland54.livejournal.com]

It was so ... strange, how the prop 8 defenders handled their case though.

I've been trying to figure this out as well because they seem almost hilariously incompetent and that worries me. They can't really be that useless, else they wouldn't have gotten the thing passed in the first place. (Though they got ready made support and organisation from religious groups, which they didn't seem to have here, who probably would have campaigned regardless of how incompetent these people were.) I guess what I want to know is the real reason they dropped all those witnesses.

[xtricks.livejournal.com]

Well, the thing with the entire prop 8 process is that it came from a basic (bigoted) morality -- all the folks working for it really didn't think much about whether or not their morality was leagally valid; they thought about how to word their morality in a way that was palatable for the majority of the voters so they could get their law passed.

The great thing about this doc, IMO, is that however skilled the next legal team is, they are still going to have to answer some very hard questions to address the stuff brought up in the brief.

[citrinesunset.livejournal.com]

Yeah, the actual campaign to get Prop. 8 passed was totally unsound and ludicrous to begin with. It relied on false claims, scare-mongering, and laughable ads. But they obviously didn't need to put forth a decent case -- it was enough to play to the fears of all the homophobic people out there. And in all fairness, a lot of political ads do this in general -- they play on people's fears and use scary buzzwords to sway people's opinions. Prop. 8 was a particularly bad, bigoted example.

I'm glad that they were put in a position where they had to actually develop a case, and that the judge shot it down. Unfortunately, they're too dense to take this as a sign that their thinking may have been flawed.

[xtricks.livejournal.com]

Unfortunately, they're too dense to take this as a sign that their thinking may have been flawed.

Well, in some ways, that's kinda good. The case they brought was so careless that if they keep that up ... it'll be difficult for even judges who are sympathetic to their views to justify the law based on the evidence at hand.

[citrinesunset.livejournal.com]

True. If they have to be prejudiced jerks, at least they're prejudiced jerks who make fools of themselves.

I guess I'd like to see these people become enlightened, but I guess it's not too likely.

[griffen.livejournal.com]

Well, that’s why this case is such an enormous blow to them. Walker spelled it out in plain, simple English, in black and white for everyone to read and realize: they’ve got nothin’. There are no facts on their side. All they have is smoke, mirrors, and fear – and he just swept that all away and said “Irrelevant to the law, folks.”

They’re livid because he just took away their best scare tactics and demonstrated that their emperor of hate has been running around bareass for the last twenty-plus years. And they can’t stand it.

[tacky-tramp.livejournal.com]

Interesting icon choice, since Adam Baldwin is a raging homophobe. :(

[hoyland54.livejournal.com]

Damn you, Adam Baldwin.

(It's the default icon. I'm possibly the only person on LJ who almost never picks an icon for the situation.)

[zeldajean.livejournal.com]

Nope, I rarely specify an icon either. :)

[sethg]

They have a hard time making their case because... they have no case.

If we still lived in a world where marriage is a fundamentally asymmetric legal institution, then the question of same-sex marriage would never have come up. Now that virtually every other distinction between the husband and wife has been taken out of marriage law (on paper, anyway), what grounds are there for hanging on to the rule that spouses must be of opposite sexes?

Even if the Prop 8 defenders would like to live in a world where married women can not own property in their own names, where the assumption that men work and women raise children is hard-coded in divorce law, etc., they can hardly say that in open court. (Maybe Justice Kennedy will say it for them.) They can’t say “we want the law to follow our religious preference” because that would be a blatant First Amendment violation. They can’t say “gay people are icky” because that would be a blatant Fourteenth Amendment violation.

[rm.livejournal.com]

They can’t say “gay people are icky” because that would be a blatant Fourteenth Amendment violation.

That, actually, is up for debate. Whether gay people are a class of people with an immutable characteristic or whether homosexuality is merely a behavior is something that hasn't really been established by the courts.

It's one of the reasons the "you're born gay" argument that I don't love as a queer person is so radically important to my civil rights. Because if I choose to fuck women as opposed to being biologically designed to do so, the 14th amendment isn't really about me in this matter.

[sethg]

Does a trait need to be established as immutable for the 14th to apply?

If a state passed a law saying “vegetarians to wait until age 17 to get a driver’s license, but everyone else can get a license at age 16”, wouldn’t this violate vegetarians’ right to equal protection?

[hoyland54.livejournal.com]

To be considered a "suspect class" for equal protection purposes, I think membership has to be defined by an immutable trait. This discussion is how I found out my housemate thought people choose to be gay.

(I'm downloading a software updates right now, so my computer is slow, so I can't double check and get a reference.)

[sethg]

From my skimming of the opinion, it seems that laws affecting a suspect class need to pass intermediate scrutiny to pass an equal-protection challenge; laws that don’t involve suspect classes or race/religion/etc. but still raise equal protection questions just need to pass rational basis review.

In this case, Prop 8 didn’t even pass rational basis review, although the judge clearly established enough of a factual record that a higher court could choose to treat gay men and lesbians as a suspect class and re-evaluate Prop 8 on an intermediate-scrutiny basis.

[hoyland54.livejournal.com]

He says specifically (p. 121, line 14) that gay men and lesbians are a suspect class and that laws discriminating against them are subject to strict scrutiny.

I thought he applied strict scrutiny as a hypothetical and had Prop 8 fail that as well for the sake of thoroughness, but, on skimming again just now, it looks like he said "This is such crap I can't/won't even try a hypothetical." I worry because I, like Judge Walker, can't figure out how any rational person could construe Prop 8 as furthering a legitimate government interest (or any government interest, for that matter), but that doesn't prevent a higher court from having greater imagination than I. (I think that should be I, not me.)

Edit: As I'm apparently incapable of expressing myself clearly in this thread, don't take that last sentence to mean I think courts make shit up.

[griffen.livejournal.com]

To be considered a "suspect class" for equal protection purposes, I think membership has to be defined by an immutable trait.

That can't be the case, because if a trait had to be immutable, then religion (a choice, except for certain ethnic groups that overlap with religious beliefs, such as ethnic Jews) would not qualify as a "suspect class" - and yet it does.

[hoyland54.livejournal.com]

According to Wikipedia, which gives this case (http://bulk.resource.org/courts.gov/c/US/540/540.US.712.02-1315.html) as its source, religious groups have never actually been held to be a suspect class by the Supreme Court. (I did some googling and it seems widely believed that they are a suspect class and a lower court or two may have ruled so.) Seemingly the religion cases get decided on free exercise grounds rather than equal protection grounds. (Which sort of makes sense--discrimination cases involving religious groups seem to usually be about practicing the religion.)

[darthhellokitty.livejournal.com]

Well, it's illegal to discriminate against me for choosing to become a Baptist or a Buddhist. Yet, I wasn't born that way.

(Not planning on either one, don't worry - just the best example I could think of.)

[rm.livejournal.com]

Yes, but not because of that part of the constitution.

[hoyland54.livejournal.com]

I was referring to things like producing unqualified expert witnesses. Now, that may simply be a side effect of them being, you know, wrong and all qualified people recognising that fact, but it still struck me as bizarre. The political scientist appears to have been a proper political scientist, except he didn't work in a the area they needed. The other guy seemed to lack appropriate qualifications entirely. Of course, they may just have been assuming that the latter guy would be accepted by the judge for whatever reason.

[griffen.livejournal.com]

I think their main problem was that a majority of the people who could have been "expert" witnesses for them would have been delivering ideological polemics rather than factual testimony (and thus inadmissible in court), and they knew that. They really had to scrounge for someone who would at least give semi-factual testimony, and they couldn't find anyone.

[5251962.livejournal.com]

Oh yes. I got into this on Facebook- and finally, I asked the question:
Do you or do you not have any rational reason based in logic why people should not have the right to marry or not? I even asked them- stay away from the Christian perspective, just explain to me why this is a problem.

I got one comment completely ignoring it- again ranting about states' rights, the feds, blah blah blah.
The other was all about how we ARE a Christian nation and need to get back to that value system before we go to hell in a handbasket. So, I did in fact get one answering that he felt that the law would follow his religious preference.

The truth is they have no case, just as you said. You pull religious dogma out of it and they have no answer.