# Gay Marriage



## Lushington (Jul 12, 2006)

Hot off the digital press, for those so inclined:

https://www.courtinfo.ca.gov/opinions/documents/S147999.PDF

Or, for those who wish to skip the 121 page decision:



> As discussed below, upon review of the numerous California decisions that
> have examined the underlying bases and significance of the constitutional right to
> marry (and that illuminate why this right has been recognized as one of the basic,
> inalienable civil rights guaranteed to an individual by the California Constitution),
> ...


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## Karl89 (Feb 20, 2005)

Lushington,

Though this decision will panic many, it is hardly the end of the Republic. The institution of marriage has survived the abuse of heterosexuals, it will surive this as well.

Karl


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## PedanticTurkey (Jan 26, 2008)

Judges think they can do whatever they want-- and, yeah, it turns out they can.

Liberal politicians love activist judges, because it takes the pressure off them.


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## Lushington (Jul 12, 2006)

Karl89 said:


> Lushington,
> 
> Though this decision will panic many, it is hardly the end of the Republic. The institution of marriage has survived the abuse of heterosexuals, it will surive this as well.
> 
> Karl


So one would think. I do know this: every family court judge, commissioner, and clerk in California is about to go stark, staring mad.


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## jackmccullough (May 10, 2006)

I think you're missing the key point. Vermont was the first state to recognize the constitutional entitlement of same-sex couples to establish a union that is in all ways equivalent to marriage. We've done it by a statutory provision for civil unions. The question in the California case is whether anything that is called something other than "marriage" can satisfy this right, and today the California Supreme Court specifically said no.

I happen to disagree. First, calling the new status "marriage" will have no effect on either federal benefits or interstate benefits in states that deny the right to marry to same-sex couples. Second, I think words have meanings, and inherent in the meaning of the word "marriage" is that the two people are of different sexes. Third, calling a same-sex union a civil union does not demean the relationship. One example I think of is that I have eight siblings, seven of whom are male and one of whom is female. I don't think it demeans my female sibling that she is not entitled to be referred to as my "brother".


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## PedanticTurkey (Jan 26, 2008)

Why not call your cousin or your goldfish a sibling?

Hell, for all we know, the Constitution might require it...


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## Wayfarer (Mar 19, 2006)

Calling Francis...


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## Lushington (Jul 12, 2006)

jackmccullough said:


> I think you're missing the key point. Vermont was the first state to recognize the constitutional entitlement of same-sex couples to establish a union that is in all ways equivalent to marriage. We've done it by a statutory provision for civil unions. The question in the California case is whether anything that is called something other than "marriage" can satisfy this right, and today the California Supreme Court specifically said no.
> 
> I happen to disagree. First, calling the new status "marriage" will have no effect on either federal benefits or interstate benefits in states that deny the right to marry to same-sex couples. Second, I think words have meanings, and inherent in the meaning of the word "marriage" is that the two people are of different sexes. Third, calling a same-sex union a civil union does not demean the relationship. One example I think of is that I have eight siblings, seven of whom are male and one of whom is female. I don't think it demeans my female sibling that she is not entitled to be referred to as my "brother".


I don't see how I've missed any point, key or otherwise, as I haven't yet commented on the opinion (haven't had a chance to read the whole thing.)


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## Lushington (Jul 12, 2006)

PedanticTurkey said:


> Why not call your cousin or your goldfish a sibling?
> 
> Hell, for all we know, the Constitution might require it...


The "constitution" at issue in these cases is not the federal Constitution, but the California state constitution.


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## PedanticTurkey (Jan 26, 2008)

Yay new federalism.


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## Quay (Mar 29, 2008)

The ruling seems impeccably written and yes, is directly applicable only in the State of California but will be widely cited elsewhere. But as for a "liberal" victory that'd be a hard one to figure. The Justices that voted for this are Conservatives. The four "activist" judges on the California Supreme Court that voted in the majority: 3 Republicans and 1 Democrat. The Chief Justice who wrote the opinion is a Republican. The Court in general is considered conservative in many rulings. This ruling will directly affect a very small minority of California's population, in other words, a large victory directly for a few relative to the whole.

Although irrelevant to California law and today's ruling, "jackmccullough" makes some interesting opinions against the decision which nevertheless were largely addressed and rejected in the body of the ruling. Also, in the absence of a subsequent federal ruling or law, the California ruling today will setup a direct conflict sometime in the future to the reciprocity provisions of the US Constitution.

To be clear though, today's ruling is solely about the law in California. The California Constitution's Equal Protection measures are not the same as other states and only closely resemble the Federal equal protection statutes. Vermont has chosen to interpret things differently than the Golden State.

Lastly, "Lushington" worries: "I_ do know this: every family court judge, commissioner, and clerk in California is about to go stark, staring mad_."

Not even a chance. :icon_smile: They've been considering this possibility for a long time and have 30 days to get the new marriage license forms conforming to the ruling.

However, I do see a golden opportunity for lawyers in all this.

Cordially,
Adrian Quay


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## Lushington (Jul 12, 2006)

Quay said:


> The ruling seems impeccably written and yes, is directly applicable only in the State of California but will be widely cited elsewhere. But as for a "liberal" victory that'd be a hard one to figure. The Justices that voted for this are Conservatives. The four "activist" judges on the California Supreme Court that voted in the majority: 3 Republicans and 1 Democrat. The Chief Justice who wrote the opinion is a Republican. The Court in general is considered conservative in many rulings. This ruling will directly affect a very small minority of California's population, in other words, a large victory directly for a few relative to the whole.
> 
> Although irrelevant to California law and today's ruling, "jackmccullough" makes some interesting opinions against the decision which nevertheless were largely addressed and rejected in the body of the ruling. Also, in the absence of a subsequent federal ruling or law, the California ruling today will setup a direct conflict sometime in the future to the reciprocity provisions of the US Constitution.
> 
> ...


Fine analysis Mr. Quay. Yes, Chief Justice George is the antithesis of a liberal, "activist" jurist (a bogeyman if ever there was one), although that won't stop the right-wing noise machine from roundly, and loudly, denouncing him as such. Too bad. In either event, when I predicted an impending nervous breakdown among family court personnel I was referring to the additional caseload that will start showing up in about 18 months, when many of the new marriages start coming apart. The California family court system is already overburdened, and an additional 5% to 10% increase in caseload will drive some judges and commissioners over the edge. Or so I have been led to believe. Que sera.

For the life of me, I can't understand why the so-called "conservatives" aren't widely agitating for gay "marriage" throughout the country. One could make a strong case that this decision is actually a setback for what passes for "progressive" politics in this country.


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## Quay (Mar 29, 2008)

Lushington said:


> Fine analysis Mr. Quay. Yes, Chief Justice George is the antithesis of a liberal, "activist" jurist (a bogeyman if ever there was one), although that won't stop the right-wing noise machine from roundly, and loudly, denouncing him as such. Too bad. In either event, when I predicted an impending nervous breakdown among family court personnel, I was referring to the additional caseload that will start showing up in about 18 months, when many of the new marriages start coming apart. The California family court system is already overburdened, and an additional 5% to 10% increase in caseload will drive some judges and commissioners over the edge. Or so I have been led to believe. Que sera.
> 
> For the life of me, I can't understand why the so-called "conservatives" aren't not widely agitating for gay "marriage" throughout the country. One could make a strong case that this decision is actually a setback for what passes for "progressive" politics in this country.


Thank you for your kind comments. I do hear what you're saying about the post-marriage impact 18+ months from now, but I don't think it will actually happen in large numbers all at once. The gay community has not had access to this venue and has long-established extra-legal ways of dealing with conflicts. There is also a well-funded and much-used arbitration precedent for the LGBT community that will probably be the first place any failings show up. No one is probably going to want to be the precedent-setter in CA to be in the first nasty gay divorce unless they've already cut a deal with Oprah. :icon_smile:

As to you last note, indeed! The ability of individuals to control their own lives without any state interference was and should be a cornerstone conservative principle in contrast to often statist progressive solutions. I know many conservatives who are very much in favor of today's ruling on pure principle. I also know others who are still trying to get their mouths to close.

Cordially,
Adrian Quay


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## Martinis at 8 (Apr 14, 2006)

> so integral to an individual's liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process.


Here is where the judges err. All law is legislated by the legislature, and legislature only. The courts may not write law, they may only interpret existing law written by the legislatures. In the above excerpt they are essentially declaring themselves omnipotent.

The U.S. Supreme Court will need to hear this next.


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## Lushington (Jul 12, 2006)

Martinis at 8 said:


> Here is where the judges err. All law is legislated by the legislature, and legislature only. The courts may not write law, they may only interpret existing law written by the legislatures. In the above excerpt they are essentially declaring themselves omnipotent.
> 
> The U.S. Supreme Court will need to hear this next.


This is not so. Courts create the law all the time. That is one of their functions. The entire body of Anglo-American common law has been created by the Courts. Further, it is for the California Supreme Court to interpret the breadth and scope of provisions of the California Constitution as they apply to enacted statutes, not the California Legislature. The U.S. Supreme Court has no grounds to review this decision - there is no federal constitutional issue raised. A cert petition will undoubtedly be filed, but it will be denied.


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## Quay (Mar 29, 2008)

Martinis at 8 said:


> Here is where the judges err. All law is legislated by the legislature, and legislature only. The courts may not write law, they may only interpret existing law written by the legislatures. In the above excerpt they are essentially declaring themselves omnipotent.
> 
> The U.S. Supreme Court will need to hear this next.


They are reaffirming some things to be self-evident as matters of substantive rights. They have interpreted California law and the California Constitution accordingly. But the excerpt is somewhat unclear out of context. The whole body, about 122 pages, of the decision must be examined for the summary noted here to make better sense. It's a pretty good read.

The US Supreme court has no jurisdiction in this particular matter of California law as it applies to California. But it certainly will if someone with standing brings a challenge, say, as a matter of reciprocity with another state. Whether the Court will decide to accept such a case is an entirely different matter.

Cordially,
Adrian Quay


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## Quay (Mar 29, 2008)

Lushington said:


> ... Further, it is for the California Supreme Court to interpret the breadth and scope of provisions of the California Constitution as it applies enacted statutes, not the California Legislature. The U.S. Supreme Court has no grounds to review this decision - there is no federal constitutional issue raised. A cert petition will undoubtedly be filed, but it will be denied.


That's a petition I look forward to reading! I can't quite imagine how it would be worded let alone the grounds it would try to stand upon but I look forward to navigating its twists.

Cordially,
Adrian Quay


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## Lushington (Jul 12, 2006)

Quay said:


> Thank you for your kind comments. I do hear what you're saying about the post-marriage impact 18+ months from now, but I don't think it will actually happen in large numbers all at once. The gay community has not had access to this venue and has long-established extra-legal ways of dealing with conflicts. There is also a well-funded and much-used arbitration precedent for the LGBT community that will probably be the first place any failings show up. No one is probably going to want to be the precedent-setter in CA to be in the first nasty gay divorce unless they've already cut a deal with Oprah. :icon_smile:


But why arbitrate if you don't have to? I guess we'll find out.



> As to you last note, indeed! The ability of individuals to control their own lives without any state interference was and should be a cornerstone conservative principle in contrast to often statist progressive solutions. I know many conservatives who are very much in favor of today's ruling on pure principle. I also know others who are still trying to get their mouths to close.
> 
> Cordially,
> Adrian Quay


Actually, I was being much more cynical. Advocating for gay marriage could act as a gay and lesbian equivalent of the "Southern Strategy": by making a serious concession to a constituency that is firmly in opposition to "conservative" policy, it might bring a large portion of that constituency into the right-wing fold.


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## Lushington (Jul 12, 2006)

Quay said:


> That's a petition I look forward to reading! I can't quite imagine how it would be worded let alone the grounds it would try to stand upon but I look forward to navigating its twists.
> 
> Cordially,
> Adrian Quay


Yeah, it would be pretty bizarre. Contending that the express privacy provision of Article I, Section 1 of the CC conflicts with the implied privacy provision of the FC, or something crazed like that. We'll see.


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## Quay (Mar 29, 2008)

Lushington said:


> But why arbitrate if you don't have to? I guess we'll find out.


In many cases it's less expensive.



> Actually, I was being much more cynical. Advocating for gay marriage could act as a gay and lesbian equivalent of the "Southern Strategy": by making a serious concession to a constituency that is firmly in opposition to "conservative" policy, it might bring a large portion of that constituency into the right-wing fold.


That would be so much fun watch the attempt to implement such a thing! I can imagine Mr. Rove being kept awake at night by the ghost of Lyndon Johnson. I shudder to imagine what he'd say to Mr. Rove, let alone show him.

Cordially,
Adrian Quay


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## Lushington (Jul 12, 2006)

Quay said:


> In many cases it's less expensive.


That is seldom the case in my experience; but I haven't been involved in a domestic dissolution arbitration. Perhaps in such cases arbitration is less costly.



> That would be so much fun watch the attempt to implement such a thing! I can imagine Mr. Rove being kept awake at night by the ghost of Lyndon Johnson. I shudder to imagine what he'd say to Mr. Rove, let alone show him.
> 
> Cordially,
> Adrian Quay


You heard it here first.


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## Wayfarer (Mar 19, 2006)

Quay said:


> However, I do see a golden opportunity for lawyers in all this.


Part of the problem in the US. Too many golden opportunities for lawyers.


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## 16412 (Apr 1, 2005)

'inalienable civil rights guaranteed to an individual by the California Constitution'

Isn't this above the California Supreme Court? So, again, it comes down to the wimpy left cheating. They like it as long as the right doesn't do it. Personally, I don't like people imposing their will on me. So they have clearly stepped on 'inalienable civil rights guaranteed to an individual by the California Constitution'.

I think the US judicial system is gone. What we have nowadays is make-believe.


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## brokencycle (Jan 11, 2008)

Lushington said:


> This is not so. Courts create the law all the time. That is one of their functions. The entire body of Anglo-American common law has been created by the Courts. Further, it is for the California Supreme Court to interpret the breadth and scope of provisions of the California Constitution as they apply to enacted statutes, not the California Legislature. The U.S. Supreme Court has no grounds to review this decision - there is no federal constitutional issue raised. A cert petition will undoubtedly be filed, but it will be denied.


The courts should not be making the law. That is a violation of checks & balances as well as separation of powers. The courts are out of control: they probably never will stop legislating from the bench, because they don't have to answer to anyone.


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## Quay (Mar 29, 2008)

^ A nice sound-bite for the evening news. Perhaps they'll call upon you?

But as for the farcical charge of an "activist judge" authoring this ruling, here's a small snippet from the SF Chronicle's editorial of this evening:

"_However, it would be hard to come up with a more perfect figure to defuse the issue and redefine the debate - as a plain matter of civil rights - than the 68-year-old Justice George. First appointed to the municipal bench by Gov. Ronald Reagan in 1972, and promoted to the Supreme Court by Gov. Pete Wilson in 1991, the unpretentious George is highly respected for his even temperament, hard work and judicial restraint. No one could credibly dismiss this ruling as the work of an "activist" judge - try as they might._"

Cordially,
Adrian Quay


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## Relayer (Nov 9, 2005)

George may well be unpretentious and all the other nice things the SF Chronicle says about him.

However, who appointed him notwithstanding, this is judicial activism, plain and simple.


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## Lushington (Jul 12, 2006)

brokencycle said:


> The courts should not be making the law. That is a violation of checks & balances as well as separation of powers. The courts are out of control: they probably never will stop legislating from the bench, because they don't have to answer to anyone.


I hate to break the news, but courts have been "making the law" in the English-speaking world since . . . before it was the English-speaking world, before Bracton, when the common law diverged from Canon law. And a state supreme court determining whether a state statute complies with the provisions of the state constitution is a perfect illustration of checks and balances and the separation of powers.


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## Quay (Mar 29, 2008)

_Judicial activism_: a short, worrisome-sounding phrase lobbed at judges who issue a ruling one disagrees with despite all evidence of law, fact, precedent and history to the contrary. In other words, a phrase with no actual meaning.

My hat is off to politicians and political activists, though, who continue to repeat this phrase as if it's a hypnotic sound to befuddle the minds of anyone daring to think for themselves. 

Cordially,
Adrian Quay, who is not a liberal.


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## ksinc (May 30, 2005)

Wayfarer said:


> Calling Francis...


I'm sure you two will be very happy together! :devil: Can you register at Brooks (I have a $20 Gift Card I need to use)?


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## Spence (Feb 28, 2006)

Quay said:


> _Judicial activism_: a short, worrisome-sounding phrase lobbed at judges who issue a ruling one disagrees with despite all evidence of law, fact, precedent and history to the contrary. In other words, a phrase with no actual meaning.
> 
> My hat is off to politicians and political activists, though, who continue to repeat this phrase as if it's a hypnotic sound to befuddle the minds of anyone daring to think for themselves.


+1

To me this issue really highlights the difference between libertarians and more traditional conservatives in a quite unflattering way.

While I can't say I've read about this at length, do state constitutions typically have any real language that would find a ban on gay marriage constitutional? I've never seen anything that would indicate they do.

-spence


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## topbroker (Jul 30, 2006)

Lushington said:


> This is not so. Courts create the law all the time. That is one of their functions. The entire body of Anglo-American common law has been created by the Courts.


Thank you for making this very basic point. It irks me sometimes that even many highly educated folks do not understand this. Did no one take high school civics?


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## topbroker (Jul 30, 2006)

Quay said:


> _Judicial activism_: a short, worrisome-sounding phrase lobbed at judges who issue a ruling one disagrees with despite all evidence of law, fact, precedent and history to the contrary. In other words, a phrase with no actual meaning.


Another great point, for which I thank you.

Let's not forget in all this that, as Andrew Sullivan has written on his blog today, "the California state legislature, presumably part of California's representative democracy, has already voted _twice_ to grant [gay] marriage rights." And if _they _can somehow be held to be thwarting "the will of the people," then representative democracy is useless and we might as well submit every issue that comes up to referendum.

One of the reasons that "judicial activism" is such a red herring here is that when a legislature such as California's passes pro-gay legislation, or when the good people of Commonwealth of Massachusetts seem to generally find the expansion of marriage rights to be not such a big deal after all, the far right is quick to find other grounds for criticizing _their_ actions: we have become a godless nation, the public and its representatives have been led astray by liberalism, etc.


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## Wayfarer (Mar 19, 2006)

ksinc said:


> I'm sure you two will be very happy together! :devil: Can you register at Brooks (I have a $20 Gift Card I need to use)?


Something tells me Francis has a husband already. And $20? pffft, not even enough for a dinner tip! You can kiss off your invite :icon_smile_big:


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## ksinc (May 30, 2005)

Wayfarer said:


> Something tells me Francis has a husband already. And $20? pffft, not even enough for a dinner tip! You can kiss off your invite :icon_smile_big:


I was thinking of a matching set plus tax.

https://www.brooksbrothers.com/IWCa...3&Parent_Id=305&default_color=Black-grey-burg

If I ever do set foot in California it's ... Mr.L's, Bellaire, Riviera, Pebble Beach, and outta there.  Maybe SF if I get into Olympic.

Our 10 year anniversary is coming up and California is on the list, but I don't think it will box out both Ireland & Scotland or even Hawaii. I have a client that has offered an apartment in Paris. Decisions, decisions. I also want to go to Italy. I'm not sure I will ever get to California. If it's not golf, I'm usually more the Cheeca Lodge speed.


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## Quay (Mar 29, 2008)

topbroker said:


> Another great point, for which I thank you.


You are most welcome. I am always glad to be of service.



> Let's not forget in all this that, as Andrew Sullivan has written on his blog today, "the California state legislature, presumably part of California's representative democracy, has already voted _twice_ to grant [gay] marriage rights." And if _they _can somehow be held to be thwarting "the will of the people," then representative democracy is useless and we might as well submit every issue that comes up to referendum.


This is why temperamentally at least I may be a monarchist. :icon_smile_big: The idea of government by referendum gives me the shakes (who, indeed, has taken a civics class in high school or anywhere?) If we could find a divine-right ruler of good sense and good will towards the people then all would be well. However, none fitting that description has yet to show up much less be crowned. Therefore I find myself stuck with republican government founded upon a body of laws. Seems to be the best we can do.

And since the California legislature, elected by the votes of constituents, has sought fit to pass this bill twice I find myself in agreement with Mr. Sullivan's argument. Wonders never cease!

Going to be a very interesting next six months in the Golden State.

Cordially,
Adrian Quay


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## Lushington (Jul 12, 2006)

Quay said:


> Going to be a very interesting next six months in the Golden State.


It usually is.


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## ksinc (May 30, 2005)

Hmmm, it is mystifying. I mean why would a Reagan-Wilson Republican Justice - apparently beyond reproach - release a decision upholding gay marriage in California in the summer before a national election?

Oh yeah, I remember now ... the ole base needs a reason to turn out the vote in November. DOMA here we come!

You have to score this one for Rove and the gang, don't ya? 

And remind me, which Democratic candidate was it the gay community and gay lobby were supporting?

Add in Bush's comment in Israel today totally filleting Carter and the Democrats who chomped on the bait and ran with it like a Bull Red, plus Hillary setting the hook by saying Bush shouldn't talk about Obama like that and McCain might even have one house of congress on his side.

I am dying to know if Hillary thought of that on her own or if Bill put her up to it. Simply amazing.


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## Quay (Mar 29, 2008)

Lushington said:


> It usually is.


Do you happen to remember those Pacific Bell commercials from the early 90's? The ones I'm thinking of were those that showed a variety of things of the "only in California" kind and then the catch phrase: "Just another day in California." I always liked those commercials. Can't see AT&T doing anything like them though even with all the crazy-seeming things going on here today.

Cordially,
Adrian Quay

PS
Where did the quote in your signature come from?


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## Quay (Mar 29, 2008)

ksinc said:


> Hmmm, it is mystifying. I mean why would a Reagan Republican - apparently beyond reproach - release a decision upholding gay marriage in California in the summer before a national election?
> 
> Oh yeah, I remember now ... the ole base needs a reason to turn out the vote in November. DOMA here we come!
> 
> You have to score this one for Rove and the gang, don't ya?


Chief Justice Ronald George would get a kick out of you implying he's a shill powered by Rovian manipulations. He ruled on the law as duty required. Besides, a battalion of paratroopers armed with chain saws couldn't get the man to change his mind what he wanted for breakfast.

Might the ruling play into nefarious political purposes? Sure. But that's a long way off from a vast right wing conspiracy, apologies to Mrs. Clinton included. 

Cordially,
Adrian Quay


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## ksinc (May 30, 2005)

Quay said:


> Chief Justice Ronald George would get a kick out of you implying he's a shill powered by Rovian manipulations.


Anything I can do to humor someone without a real job is something I'm proud to do.  I personally feel 'career civil servants' are about 90% of what's wrong with this country today. Throw in all three Presidential candidates as Exhibit A.

I am a little bit interested in what the other side of the aisle's argument is for the justification of a State Supreme Court. I mean that is so 1859, isn't it? 

What purpose is served by all this pretending that this will be decided at the State level? I think Conservatives would be happy to meet Progressives at the State Level with gay marriage if we can also have Roe v. Wade be sent back there. Deal or No Deal?


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## Quay (Mar 29, 2008)

ksinc said:


> I personally feel 'career civil servants' are about 90% of what's wrong with this country today. Throw in all three Presidential candidates as Exhibit A.
> 
> I am a little bit interested in what the other side of the aisle's argument is for the justification of a State Supreme Court. I mean that is so 1859, isn't it?


As messy a system as it seems to be sometimes with more than a few dead-brains in jobs from which dismissal is impossible.... what would we replace it with? There's a internet email going around about outsourcing the Presidency to India. Perhaps we could do the same with the state courts? 

Cordially,
Adrian Quay


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## ksinc (May 30, 2005)

I should add that on the core issue of the debate - Gay Marriage - I'm somewhat ambivalent. Although I don't support it and would vote against it if I am given a ballot, I'm willing to accept the will of the majority.

My real issue was that I didn't think gay couples should be allowed to adopt & raise children, but I'm pretty sure that train has left the station. Whether there were legitimate reasons to be concerned or not only another 15-20 years or so will tell. I'm a pragmatic person and I'm happy to be wrong if that's how it turns out.

I just think the welfare of children is a far more important subject than what Jack and Jack are doing.


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## ksinc (May 30, 2005)

Quay said:


> Perhaps we could do the same with the state courts?
> 
> Cordially,
> Adrian Quay


Well, the States clearly have no legitimate autonomous authority. What's the point of out-sourcing the State Supreme Courts? Just abolish them.

I mean if we want the SCOTUS to decide everything let's just be done with it and save ourselves the $millions and the aggravation.

The whole concept of "I'm not the last person who is going to decide this" breeds at best apathy and at worst experimentation IMHO.

Warmest Regards BTW.


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## Quay (Mar 29, 2008)

ksinc, I invite you to read the actual ruling. It's a good read unless you're allergic to briefs:

https://www.courtinfo.ca.gov/courts/supreme/highprofile/

The court specifically ruled that this is not an issue of "gay" marriage but one of strictly constructed civil rights based on the California Constitution with many important US Supreme court decisions cited for added weight. Their logic is pretty impeccable. Even for Republican career civil servants without any real jobs. 

As for gays raising children, they've been doing that for thousands of years. The evidence of some kind of specific problem with that that would be contrary to the interests of society would have come forward by now. In modern times there has been no credible evidence of any problems created by same-sex households. No more so than any other household, which may or may not be much of an endorsement either way! :icon_smile_big:

Cordially,
Adrian Quay


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## Lushington (Jul 12, 2006)

Quay said:


> Do you happen to remember those Pacific Bell commercials from the early 90's? The ones I'm thinking of were those that showed a variety of things of the "only in California" kind and then the catch phrase: "Just another day in California." I always liked those commercials. Can't see AT&T doing anything like them though even with all the crazy-seeming things going on here today.
> 
> Cordially,
> Adrian Quay
> ...


I don't recall that ad campaign specifically, but there have been several like it. A state this big, this diverse, this crowded, this wealthy, and with this much history is bound to be interesting. It just comes with the territory.

The quote is from William Gass' short story "In the Heart of the Heart of the Country."  The full passage reads:



> Sports, politics, and religion are the three passions of the badly educated. They are the Midwest's open sores. Ugly to see, a source of constant discontent, they sap the body's strength. Appalling quantities of money, time, and energy are wasted on them. The rural mind is narrow, passionate, and reckless on these matters. Greed, however shortsighted and direct, will not alone account for it. I have known men, for instance, who for years have voted squarely against their interests. Nor have I ever noticed that their surly Christian views prevented them from urging forward the smithereening of Russian, China, Cuba, or Korea. And they tend to back their country like they back their local team: they have a fanatical desire to win; yelling is their forte; and if things go badly, they are inclined to sack the coach. All in all, then, Birch is a good name. It stands for the bigot's stick, the wild-child-tamer's cane.


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## ksinc (May 30, 2005)

Quay said:


> ksinc, I invite you to read the actual ruling. It's a good read unless you're allergic to briefs:
> 
> https://www.courtinfo.ca.gov/courts/supreme/highprofile/
> 
> ...


I did read it(ADDED: I certainly did not read all 172pgs that are in your link though. I think I read the conclusion LOL), but I'm not a lawyer. I don't think that citing SCOTUS prevents what is sure to be an inevitable review, does it? I mean other than Californians what percentage of the population wants the California Supreme Court deciding this for the rest of us?

Well, you are making my argument against gay marriage. Gays have been married in the United States as long as there have been marriages. I know a gay guy with two teenage daughters and a lovely wife. To say gay people can't get married is just ludicrous. Gay men "marry" women all the time. Same-sex marriage is the real issue and I am against two straight guys getting "married" also. (ADDED: where I live that is the overwhelming majority opinion. In Florida, adoption is also not approved yet AFAIK. I'm shocked considering all the big northern city transplants we have here now. Perhaps they are mostly Catholics and Jews that are socially conservative. I dunno.)

As I said I'm happy to be wrong when the real effects are known.


----------



## Quay (Mar 29, 2008)

ksinc said:


> Well, the States clearly have no legitimate autonomous authority.


True enough except for that mention or several in the US Constitution. 



> I mean if we want the SCOTUS to decide everything let's just be done with it and save ourselves the $millions and the aggravation.


This is where my monarchist side comes merrily to the forefront. If we could guarantee and enlightened and just SCOTUS then why indeed not? But we've got the current SCOTUS and they can't seem to meet this standard. And no current Presidential candidate will attempt to meet it either, either by example or appointment.



> The whole concept of "I'm not the last person who is going to decide this" breeds at best apathy and at worst experimentation IMHO.


Oh indeed so! The pass-the-buck mentality gets bred into folks in law school in particular. Good thing Justice George got over that a while back.

Warm regards to you as well and I'll buy the next round. 

Cordially,
Adrian Quay


----------



## jackmccullough (May 10, 2006)

I think this has been said before in this thread, but let's be clear: the U.S. Supreme Court has nothing to say about whether some California law violates the California constitution. Every state's supreme court is supreme in its ability to interpret and apply its own constitution. 

Also, this decision applies only to California. I don't live there, so they haven't decided anything for me.


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## Quay (Mar 29, 2008)

Lushington said:


> The quote is from William Gass' short story "In the Heart of the Heart of the Country."


Ah! Thank you. I must now go deduct many points from my tally for not recognizing it right away.

Cordially,
Adrian Quay


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## Lushington (Jul 12, 2006)

ksinc said:


> Anything I can do to humor someone without a real job is something I'm proud to do.  I personally feel 'career civil servants' are about 90% of what's wrong with this country today. Throw in all three Presidential candidates as Exhibit A.
> 
> I am a little bit interested in what the other side of the aisle's argument is for the justification of a State Supreme Court. I mean that is so 1859, isn't it?
> 
> What purpose is served by all this pretending that this will be decided at the State level? I think Conservatives would be happy to meet Progressives at the State Level with gay marriage if we can also have Roe v. Wade be sent back there. Deal or No Deal?


Actually, the California Supreme Court ruled in 1969 that state laws prohibiting abortion were unconstitutional under the state constitution. And in 1971 it ruled that laws requiring a minor to obtain parental consent for an abortion also violated the California Constitution.


----------



## ksinc (May 30, 2005)

Lushington said:


> Actually, the California Supreme Court ruled in 1969 that laws prohibiting abortion were unconstitutional under the state constitution. And in 1971 it ruled that laws requiring a minor to obtain parental consent for an abortion also violated the California Constitution.


Thank you, but that's neither the relevant point nor the relevant legal decision today. Other states ruled differently. The question is do you want to leave all these things to States or do they get decided at the Federal level. I'm sure you knew what I meant as does AQ. What the consistency in the theory is, is what I'm confused about.


----------



## Quay (Mar 29, 2008)

ksinc said:


> I did read it(ADDED: I certainly did not read all 172pgs that are in your link though. I think I read the conclusion LOL), but I'm not a lawyer. I don't think that citing SCOTUS prevents what is sure to be an inevitable review, does it? I mean other than Californians what percentage of the population wants the California Supreme Court deciding this for the rest of us?


As has been noted this decision is not subject to any review. That's not the way we set up this country.



> Well, you are making my argument against gay marriage....


I deny that allegation and also refuse to be considered a part of such blatant sophistry. Anita Bryant has been spiking your orange juice. 

Cordially,
Adrian Quay


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## ksinc (May 30, 2005)

jackmccullough said:


> I think this has been said before in this thread, but let's be clear: the U.S. Supreme Court has nothing to say about whether some California law violates the California constitution. Every state's supreme court is supreme in its ability to interpret and apply its own constitution.
> 
> Also, this decision applies only to California. I don't live there, so they haven't decided anything for me.


So then we are all agreed, Roe v. Wade will be sent back for individual State decisions like same-sex marriage is being handled? And also States may continue to decide if they will recognize marriages in other states that have same-sex marriages? Fantastico! I can live with that. "Let it be done."


----------



## Lushington (Jul 12, 2006)

ksinc said:


> Thank you, but that's neither the relevant point nor the relevant legal decision today. Other states ruled differently. The question is do you want to leave *all these things* to States or do they get decided at the Federal level. I'm sure you knew what I meant as does AQ. What the consistency in the theory is, is what I'm confused about.


All what things? Many things are decided at the federal level, many things are decided at the state level, and many things are decided at both levels. It isn't an either/or. In some matters federal law preempts conflicting state laws; in some matters it does not. Roe, because it was based upon a federal constitutional right, preempts conflicting state law. However, the federal right to privacy upon which Roe was based has not been extended in any significant manner since that decision. So matters that do not fall within the scope of that inchoate federal right are decided by state law, as was today's decision by the California Supreme Court.


----------



## ksinc (May 30, 2005)

Lushington said:


> All what things? Many things are decided at the federal level, many things are decided at the state level, and many things are decided at both levels. It isn't an either/or. In some matters federal law preempts conflicting state laws; in some matters it does not. Roe, because it was based upon a federal constitutional right, preempts conflicting state law. However, the federal right to privacy upon which Roe was based has not been extended in any significant manner since that decision. So matters that do not fall within the scope of that inchoate federal right are decided by state law, as was today's decision by the California Supreme Court.


All what things? Gay marriage, abortion, the social issues. Am I speaking a foreign language again. I hate it when I do that! 

Oh come on, Roe v. Wade is a lot of things, but based on upon a federal constitutional right to privacy it is not. That's the first time I've heard that repeated in a while. I thought the current mainstream stance was "it was a bad decision, but it's so old now we have to respect it" or something similar?


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## Quay (Mar 29, 2008)

ksinc said:


> So then we are all agreed, Roe v. Wade will be sent back for individual State decisions like same-sex marriage is being handled? And also States may continue to decide if they will recognize marriages in other states that have same-sex marriages? Fantastico! I can live with that. "Let it be done."


Sure, sure. Perhaps Georgia and Florida will also want to reconsider _Brown v. Board_ and other inconvenient decisions that re-arranged society against the alleged wishes of the majority. In fact while we're marching that way, we should just toss _Griswold _and also dig up and lynch former US Supreme Court Justice John Marshall since he got us into this whole mess with _Marbury v. Madison_ in the first place.

My personal choice, though, is revisiting the rulings that allow the federal government to collect an income tax. :icon_smile_big:

Cordially,
Adrian Quay
_https://en.wikipedia.org/wiki/Marbury_v._Madison_


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## ksinc (May 30, 2005)

Quay said:


> Sure, sure. Perhaps Georgia and Florida will also want to reconsider _Brown v. Board_ and other inconvenient decisions that re-arranged society against the alleged wishes of the majority. In fact while we're marching that way, we should just toss _Griswold _and also dig up and lynch former US Supreme Court Justice John Marshall since he got us into this whole mess with _Marbury v. Madison_ in the first place.
> 
> My personal choice, though, is revisiting the rulings that allow the federal government to collect an income tax. :icon_smile_big:
> 
> ...


Hey, I just want *CHANGE*! I have the audacity to hope we change all these things. It's the first time I've been proud to be an American in a long time. I know we can do it! Yes we can! :devil:

I was just reading something the other day discussing IF the South had released the slaves when old Abe decided to revise history and claim the war was really about slavery when he couldn't get any recruits, would the South have won? I don't know much about _stare decisis_, but I'm pretty sure that once someone has actually surrendered the rest is moot. LOL

I'm just saying pick your poison. You are implying that the Federal Decisions are the 'rule of the land' and 'water under the bridge.' All I'm saying is Great! Then lets move everything on up there and end all the posturing in the elections about State's Rights. Are we going to have another 4 year election decided by beating the same old tired drum? That can't be good for anyone.

I believe in State's Rights and the Constitution as originally written, but then I'm probably also going to die when the FBI & BATF blows my house up someday


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## Lushington (Jul 12, 2006)

ksinc said:


> All what things? Gay marriage, abortion, the social issues. Am I speaking a foreign language again. I hate it when I do that!


You seem to be ignoring the way the legal system in this country works, and has worked in large part since the passage of the 13th, 14th, and 15th Amendments. Gay marriage does not implicate a federal constitutional issue; abortion does.


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## Lushington (Jul 12, 2006)

ksinc said:


> All what things? Gay marriage, abortion, the social issues. Am I speaking a foreign language again. I hate it when I do that!
> 
> Oh come on, Roe v. Wade is a lot of things, but based on upon a federal constitutional right to privacy it is not. That's the first time I've heard that repeated in a while. I thought the current mainstream stance was "it was a bad decision, but it's so old now we have to respect it" or something similar?


Obviously you haven't been involved in the litigation of privacy rights in recent years.


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## Quay (Mar 29, 2008)

Lushington said:


> You seem to be ignoring the way the legal system in this country works, and has worked in large part since the passage of the 13th, 14th, and 15th Amendments. Gay marriage does not implicate a federal constitutional issue; abortion does.


Indeed. And since you're apparently an attorney you must see a lot of this sort of thing.

I can, though, see the California ruling coming up under equal protection arguments. After all, no matter what folks here think, the CA Supreme Court is by any known measure the most legally admired state supreme court in the land. It's cited far more often than any other state court. The CASC opinions enjoy a very high degree of legal respect. I think in time today's ruling will incur the same sort of reputation and respect.

Cordially,
Adrian Quay


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## ksinc (May 30, 2005)

Lushington said:


> You seem to be ignoring the way the legal system in this country works, and has worked in large part since the passage of the 13th, 14th, and 15th Amendments. Gay marriage does not implicate a federal constitutional issue; abortion does.


I'm not ignoring it; I'm criticizing it. I'm merely asking for logical consistency. You are responding with that's how it has been. It's nuts. It's like taxes. Lots of things are legal that make ZERO sense.

Clearly, whether you or I like it or not, same-sex marriage is going to implicate a federal constitutional issue and it's going to be a major issue in November w/ the Federal Marriage Amendment. McCain said he supported State's deciding in the courts unless it became required. I don't see how you can deny this is going to push that issue to the forefront.

McCain was playing moderate, but this decision will push the issue out into the debate.



John McCain.com said:


> *Protecting Marriage*
> As president, John McCain would nominate judges who understand that the role of the Court is not to subvert the rights of the people by legislating from the bench. Critical to Constitutional balance is ensuring that, where state and local governments do act to preserve the traditional family, the Courts must not overstep their authority and thwart the Constitutional right of the people to decide this question.
> 
> The family represents the foundation of Western Civilization and civil society and John McCain believes the institution of marriage is a union between one man and one woman. It is only this definition that sufficiently recognizes the vital and unique role played by mothers and fathers in the raising of children, and the role of the family in shaping, stabilizing, and strengthening communities and our nation.
> ...


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## ksinc (May 30, 2005)

Lushington said:


> Obviously you haven't been involved in the litigation of privacy rights in recent years.


Well since I am not a lawyer, I hope your not just now figuring that out. If I was a lawyer I wouldn't ask questions or answer them - apparently. 

Maybe go back to post #50 and try to give me a responsive answer. It was a legitimate question. What you said may be true, but it certainly wasn't left there at the States. Perhaps you need clarification to answer? Shoot! I'll do my non-lawyer best!

I mean I'm just shocked and confused. Did you all listen to that guy Huckabee at all? The Federal Marriage Amendment is coming right at the Dems in November whether McCain likes it or not. Huckabee is still winning 15% and those are the hardcores. McCain can't win without the 33% that support an Amendment. Yes, before he did his little dance on the "an Amendment isn't needed yet, but I support protecting 1-man/1-woman" deal. Surely, we aren't pretending we don't know that is the next step and the California ruling will be the end?

(ADDED: remember neither McCain nor Huckabee are my guys. I'm just being pragmatic. I wanted Romney and I was denied.)


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## Lushington (Jul 12, 2006)

ksinc said:


> I'm not ignoring it; I'm criticizing it. I'm merely asking for logical consistency.


Logical consistency? Now that's funny. No nation, no legal system, no entity, that is founded upon a federal system featuring a separation of powers is ever going exhibit "logical consistency" in its actions, organization, or operations. Is McCain going to make political hay with today's decision? Of course. He'll be pounding the drum tomorrow, urging the reactionaries to get their diapers in a wad because, before you know it, gay married people will be on the march everywhere. That's the way the game's played. So what?

And tell me, how "logically consistent" was the Confederacy in its approach to "states rights"? Do you not find it ironic that the confederation of states that seceded from the Union on a platform of states rights almost immediately created a centralized state with a concentration of power far beyond that of the Union, and one not seen again in North America until Roosevelt's New Deal? If logical consistency is what you are looking for, the actions of states and princedoms is not the proper subject.


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## ksinc (May 30, 2005)

Lushington said:


> Logical consistency? Now that's funny. No nation, no legal system, no entity, that is founded upon a federal system featuring a separation of powers is ever going exhibit "logical consistency" in its actions, organization, or operations. Is McCain going to make political hay with today's decision? Of course. He'll be pounding the drum tomorrow, urging the reactionaries to get their diapers in a wad because, before you know it, gay married people will be on the march everywhere. That's the way the game's played. So what?
> 
> And tell me, how "logically consistent" was the Confederacy in its approach to "states rights"? Do you not find it ironic that the confederation of states that seceded from the Union on a platform of states rights almost immediately created a centralized state with a concentration of power far beyond that of the Union, and one not seen again in North America until Roosevelt's New Deal? If logical consistency is what you are looking for, the actions of states and princedoms is not the proper subject.


Hey! I'm not the one arguing it. You got the choir here. I merely asked why the other side isn't making that argument. Is there no rational answer? I can accept that.

Heck, I'm still confused how the States, which apparently had no right to secede, had to be re-admitted to the Union after surrendering.

Assuming you are on the other side of the aisle, are you telling me there is no argument to be made and no purpose is served? If you are not, then I am really, really confused now! LOL



> I am a little bit interested in what the other side of the aisle's argument is for the justification of a State Supreme Court. I mean that is so 1859, isn't it?
> 
> What purpose is served by all this pretending that this will be decided at the State level?


I'm sorry for getting sucked into the momentum. I thought we were gonna finally *CHANGE* things? I'm so gullible ... They got me again!


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## Quay (Mar 29, 2008)

Lushington said:


> Logical consistency? Now that's funny. No nation, no legal system, no entity, that is founded upon a federal system featuring a separation of powers is ever going exhibit "logical consistency" in its actions, organization, or operations....


I'd expand that to say that no human organization of any kind will ever exhibit logical consistency over time. Whatever consistency of logic actually means!



> ...If logical consistency is what you are looking for, the actions of states and princedoms is not the proper subject.


That's why I cheekily admire the "divine right" of kings. Any and all actions are entirely consistent with the will of the monarch. However they are often far, far from holding with any known logic.

As much as I admire consistency in each and every bottle of gin I purchase I actually don't much need it in political society. The change, the chaos the excitement! Where would we be as nation or society without entertaining and amusing inconsistencies?

Cordially,
Adrian Quay


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## Lushington (Jul 12, 2006)

You want an answer to this question?



> I think Conservatives would be happy to meet Progressives at the State Level with gay marriage if we can also have Roe v. Wade be sent back there. Deal or No Deal?


I don't even know how to answer this. I don't care about abortion one way or the other. My point is that if Roe is overruled tomorrow, the prior California decisions would govern the issue in California. I couldn't care less what they do in Florida.


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## ksinc (May 30, 2005)

Lushington said:


> You want an answer to this question?
> 
> I don't even know how to answer this. I don't care about abortion one way or the other. My point is that if Roe is overruled tomorrow, the prior California decisions would govern the issue in California. I couldn't care less what they do in Florida.


That's more than good enough for me. I feel the same way. Call it jurisdictional consistency. Can I even hope for that? Obama is a constitutional law guy isn't he? He can win my vote easy if he wants it.

Yes, thank you, but more so the previous question(s) I just quoted in the above post.


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## ksinc (May 30, 2005)

Quay said:


> I'd expand that to say that no human organization of any kind will ever exhibit logical consistency over time. Whatever consistency of logic actually means!
> 
> That's why I cheekily admire the "divine right" of kings. Any and all actions are entirely consistent with the will of the monarch. However they are often far, far from holding with any known logic.
> 
> ...


Well, we could put all those civil servants to work re-building the roads, bridges, and levies that are killing the children. 

Cheers AQ! :aportnoy:

BTW how would anyone know if gin was bad? :devil:


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## Lushington (Jul 12, 2006)

ksinc said:


> Hey! I'm not the one arguing it. You got the choir here. I merely asked why the other side isn't making that argument. Is there no rational answer? I can accept that.
> 
> Heck, I'm still confused how the States, which apparently had no right to secede, had to be re-admitted to the Union after surrendering.
> 
> ...


You are very confused. What aisle are you talking about? What argument is there for a state supreme court? To decide ultimate issues of state law. Pretty simple argument. Most state Supreme Court decisions are not momentous opinions that will have talk radio lunatics crawling on the ceiling. Most of them are hum drum affairs dealing with the application of state statutes, with decisions of lower state courts, and that kind of daily nuts and bolts affairs.


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## ksinc (May 30, 2005)

Lushington said:


> You are very confused. What aisle are you talking about? What argument is there for a state supreme court? To decide ultimate issues of state law. Pretty simple argument. Most state Supreme Court decisions are not momentous opinions that will have talk radio lunatics crawling on the ceiling. Most of them are hum drum affairs dealing with the application of state statutes, with decisions of lower state courts, and that kind of daily nuts and bolts affairs.


Well sure, but take say ... oh I dunno ... Gore vs. Bush.

Other side of the aisle = liberals & social progressives, pro-same-sex marriage, pro-abortion, etc.

And; why did the States have to be re-admitted to the Union? And; why wasn't Jefferson Davis tried as a traitor if the South was only in rebellion and secession was illegal and unrecognized?


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## Quay (Mar 29, 2008)

ksinc said:


> BTW how would anyone know if gin was bad? :devil:


Bad gin? Easy. It's usually referred to as scotch.

Cordially,
Adrian Quay


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## Lushington (Jul 12, 2006)

ksinc said:


> Well sure, but take say ... oh I dunno ... Gore vs. Bush.


What about it?



> Other side of the aisle = liberals & social progressives, pro-same-sex marriage, pro-abortion, etc.


You have me confused with someone else.



> And; why did the States have to be re-admitted to the Union?


 So the Union position first enunciated in The Prize Cases could be maintained without too much inconsistency.


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## ksinc (May 30, 2005)

Quay said:


> Bad gin? Easy. It's usually referred to as scotch.
> 
> Cordially,
> Adrian Quay


Touche', Sir! [email protected]! :icon_smile_big:


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## ksinc (May 30, 2005)

Lushington said:


> So the Union position first enunciated in The Prize Cases could be maintained without too much inconsistency.


Lincoln's argument was that the South was not a nation and did not secede. Apparently, the Prize Cases merely found that it was not necessary for them to be a nation to avoid a piracy charge. Is that not true? I don't know.

If it were true, then the States still did not need to be re-admitted, no?

Isn't that why Davis was indicted, held for two years, but never tried, i.e. because the prosecutors knew they couldn't win an argument that secession was illegal?


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## ksinc (May 30, 2005)

Lushington said:


> What about it?


Well "What argument is there for a state supreme court? To decide ultimate issues of state law. Pretty simple argument." didn't seem to work out too well for them. They weren't ultimate deciders of much. They pretty much got their hand slapped.



Lushington said:


> You have me confused with someone else.


I apologize. I thought that's why you were answering in post #50. That's why I couldn't figure out how that was relevant.


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## Lushington (Jul 12, 2006)

ksinc said:


> Lincoln's argument was that the South was not a nation and did not secede. Apparently, the Prize Cases merely found that it was not necessary for them to be a nation to avoid a piracy charge. Is that not true? I don't know.
> 
> If it were true, then the States still did not need to be re-admitted, no?


I don't have time to go into this now. Basically the Prize Cases held that for purposes of domestic politics the South was in rebellion; but for purposes of international relations features of a war between nations existed. As I recall the Court relied upon Vattel's definition of civil war to reach this conclusion. This prevented the Union from being accused of piracy by European nations for blockading Southern ports. Hence the charade of re-admittance, to avoid post-war claims by European nations denied the use of the blockaded ports. The view changed very quickly. I had a three or four of lengthy posts on this a couple of years ago, that are probably in the archives. Personally, I think every one of the Southern leaders from Davis down to the guy running the printing press should have been hanged, but no one asked me.

Well, this has been scintillating, but I must call it a night. And how 'bout that Confederacy, eh?


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## ksinc (May 30, 2005)

Lushington said:


> Personally, I think every one of the Southern leaders from Davis down to the guy running the printing press should have been hanged, but no one asked me.
> 
> Well, this has been scintillating, but I must call it a night. And how 'bout that Confederacy, eh?


I do too, but I think NBF should have done it! 

The CSA - good idea; bad execution! LOL

Good night!


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## Lushington (Jul 12, 2006)

ksinc said:


> Well "What argument is there for a state supreme court? To decide ultimate issues of state law. Pretty simple argument." didn't seem to work out too well for them. They weren't ultimate deciders of much. They pretty much got their hand slapped.


Well, yeah, that the Court heard the case at all is the initial charge against it, and only the first of many features of the decision that reveal it to be a partisan act of judicial kingmaking. These things happen. As I said, logical consistency is not to be had in these matters. Out of the crooked timber of humanity, no straight thing can be made, and all that.


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## Quay (Mar 29, 2008)

Lushington said:


> ...Personally, I think every one of the Southern leaders from Davis down to the guy running the printing press should have been hanged, but no one asked me....


For which I'm truly thankful as you'd have cut off part my ancestral tree and I might not exist. Then again they bred young so as long as they all had already sired children it might have made a dramatic point.

I must be off to sleep, too. No telling what rulings will descend from the bench tomorrow.

Cordially,
Adrian Quay


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## jackmccullough (May 10, 2006)

ksinc said:


> I believe in . . . the Constitution as originally written . . .


Not me. I actually like the Bill of Rights, the constitutional prohibition on involuntary servitude, and the constitutional guarantee of due process of law and the equal protection of the laws, and the right of women to vote. I also don't believe that slaves should be counted as three-fifths of a human being.

But that's just me.


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## Relayer (Nov 9, 2005)

"I also don't believe that slaves should be counted as three-fifths of a human being."

One of the biggest red herrings, ever. If you really understand the issue(s) and the players behind "three-fifths" (and I bet you do), you know that.


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## PedanticTurkey (Jan 26, 2008)

It's very honest of him to say that he doesn't actually believe in the Constitution, but in the judicial activism that's been undertaken in its name since the late '30s.

Remarkably honest. You won't find one in a hundred who will admit that.


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## PorterSq (Apr 17, 2008)

Quay said:


> They are reaffirming some things to be self-evident as matters of substantive rights. They have interpreted California law and the California Constitution accordingly. But the excerpt is somewhat unclear out of context. The whole body, about 122 pages, of the decision must be examined for the summary noted here to make better sense. It's a pretty good read.
> 
> The US Supreme court has no jurisdiction in this particular matter of California law as it applies to California. But it certainly will if someone with standing brings a challenge, say, as a matter of reciprocity with another state. Whether the Court will decide to accept such a case is an entirely different matter.
> 
> ...


Adrian,

My understanding is that claiming marriage as a "matter of reciprocity" with another state will not happen as a result of the Defense of Marriage Act that President Clinton signed into law (it's funny how political views switch over time, eh?).


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## Frank aka The Minotaur (Nov 12, 2004)

PedanticTurkey said:


> Judges think they can do whatever they want-- and, yeah, it turns out they can.
> 
> Liberal politicians love activist judges, because it takes the pressure off them.


All but one of the justices are Republicans and were appointed by Republicans. The outcries of "Activist judges!" really is getting old and really has no meaning. They are activist only when they rule against the wishes of the conservatives wrt gay marriage.

They, like their brethren in NJ, found the state constitutions' clauses of equal protection to be violated. While there is no explicit provision for _any_ marriage in either constitution, if a consenting adult heterosexual couple can obtain a duly issued marriage license by the state (a procedure implied in the US Constitution, which I believe will show the unconstitutionality of state bans on gay marriage and DOMA), so can a consenting adult homosexual couple. Times have changed and it's been proven beyond any doubt that homosexuals can enter into stable, loving family relationships, just like heterosexuals.

Now, so much for "activist jusdges" who required that the constitution be upheld.


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## jackmccullough (May 10, 2006)

PedanticTurkey said:


> It's very honest of him to say that he doesn't actually believe in the Constitution, but in the judicial activism that's been undertaken in its name since the late '30s.
> 
> Remarkably honest. You won't find one in a hundred who will admit that.


Having trouble reading, PT?

I actually believe in the whole Constitution, including the amendments, which ksinc apparently doesn't. (Not surprising to hear that coming from someone who apparently thinks the traitors who attempted to secede from the Union were justified in going to war to defend the right to own human beings.)

The decisions that you decry as "judicial activism", presumably including Brown v. Board of Education, Griswold v. Connecticut, Roe v. Wade, Loving v. Virginia, Lawrence v. Texas, Texas v. Johnson, etc., I would consider examples of sound constitutional jurisprudence.


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## Frank aka The Minotaur (Nov 12, 2004)

Martinis at 8 said:


> The courts may not write law,


They didn't.



> they may only interpret existing law written by the legislatures.


They did.



> In the above excerpt they are essentially declaring themselves omnipotent.


They did their jobs.



> The U.S. Supreme Court will need to hear this next.


Not likely. No basis for it. This decision grants rights, not restricts or removes them. There is no challenge based on the US Constitution. In fact, let the opponents try it... I'll wager that it will open the floodgates to the SCOTUS striking down state bans on gay marriage as violations of the Fourtheenth Amendment.

Conservatives hoist on their own petards. Gotta love irony.


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## PedanticTurkey (Jan 26, 2008)

Frank aka The Minotaur said:


> All but one of the justices are Republicans and were appointed by Republicans. The outcries of "Activist judges!" really is getting old and really has no meaning. They are activist only when they rule against the wishes of the conservatives wrt gay marriage.


Nonsense. They're activist when they engage in judicial activism. There's no such thing as a "Republican" judge, anyway.



> They, like their brethren in NJ, found the state constitutions' clauses of equal protection to be violated. While there is no explicit provision for _any_ marriage in either constitution, if a consenting adult heterosexual couple can obtain a duly issued marriage license by the state (a procedure implied in the US Constitution, which I believe will show the unconstitutionality of state bans on gay marriage and DOMA), so can a consenting adult homosexual couple. Times have changed and it's been proven beyond any doubt that homosexuals can enter into stable, loving family relationships, just like heterosexuals.
> 
> Now, so much for "activist jusdges" who required that the constitution be upheld.


The problem is that the argument is result-oriented nonsense intended to advance a social cause that's outside the proper scope of the judiciary, hence activism.


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## Frank aka The Minotaur (Nov 12, 2004)

Quay said:


> As for gays raising children, they've been doing that for thousands of years. The evidence of some kind of specific problem with that that would be contrary to the interests of society would have come forward by now. In modern times there has been no credible evidence of any problems created by same-sex households. No more so than any other household, which may or may not be much of an endorsement either way! :icon_smile_big:
> 
> Cordially,
> Adrian Quay


There are some theories that homosexulity may have evolved in humans and other animals to help in raising offspring, and possibly giving them and the clan, tribe, herd, a better chance for survival.

If I can find the reference I'll post it, but ala, it's probably one of those thigns I read that just stuck in my mind without my usual ocd bookmarking for future reference (did I think this sort of thing would never come up again!?  :icon_smile_big: ).


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## Frank aka The Minotaur (Nov 12, 2004)

ksinc said:


> So then we are all agreed, Roe v. Wade will be sent back for individual State decisions like same-sex marriage is being handled? And also States may continue to decide if they will recognize marriages in other states that have same-sex marriages? Fantastico! I can live with that. "Let it be done."


No. Eventually it will be measured against the Fourteenth Amendment's equal protection clause. I believe that was one of, if not _the_ basis for Row v. Wade and Lawrence v. Texas (overturning state sodomy laws), in addition to the perceived and implied (it's not explicit in the Constitution, unfortunately) right to privacy.


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## PedanticTurkey (Jan 26, 2008)

Roe/Casey and Lawrence have nothing to do with the equal protection clause. They're based in the "due process" clause, not that they couldn't just as easily have been based on equal protection.

Because, you see, a judge who wants to can do ANYTHING with due process or equal protection, because the clauses are meaningless.

Consider why 5-year-olds shouldn't be able to marry each other--isn't that denying them equal protection of the laws? No, you say. Why not?


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## Frank aka The Minotaur (Nov 12, 2004)

PedanticTurkey said:


> Nonsense. They're activist when they engage in judicial activism. There's no such thing as a "Republican" judge, anyway.
> 
> The problem is that the argument is result-oriented nonsense intended to advance a social cause that's outside the proper scope of the judiciary, hence activism.


Because it didn't go your way. Cite specifics, and not hyperbole. Read the texts of the constitutions and the justices' decisions based on their reading of the constitutions. I know you haven't.

I won't argue with hyperbole and melodrama.

Thank you and have a good day.


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## PedanticTurkey (Jan 26, 2008)

Oh, give me a break. I've read far too much of this garbage, which is why I no longer have any patience for it.


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## Frank aka The Minotaur (Nov 12, 2004)

PedanticTurkey said:


> Consider why 5-year-olds shouldn't be able to marry each other--isn't that denying them equal protection of the laws? No, you say. Why not?


Read your state contract laws. Marriage is a contract; it is officiated over by a duly autorized government representative. A clergyperson signs a marriage certificate only because he or she is licensed by state to do so. Without that legal right, a "church wedding" is not valid. A marriage contract is dissolved in a court of law presided over by a judge. A 5 year old, a parrot, a dog, a sea monkey, cannot enter into an informed consent-required contract.

That is fact, not hyperbole and melodrama.


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## PedanticTurkey (Jan 26, 2008)

Frank aka The Minotaur said:


> Read your state contract laws. Marriage is a contract; it is officiated over by a duly autorized government representative. A clergyperson signs a marriage certificate only because he or she is licensed by state to do so. Without that legal right, a "church wedding" is not valid. A marriage contract is dissolved in a court of law presided over by a judge. A 5 year old, a parrot, a dog, a sea monkey, cannot enter into an informed consent-required contract.
> 
> That is fact, not hyperbole and melodrama.


So, in other words, you're saying that there's a "good reason" why children can't get married, and so they're denied equal protection of the laws, but it's okay. Sometimes. In cases where you say it's okay, it's okay.

Kind of a circular argument, ain't it?


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## DukeGrad (Dec 28, 2003)

*My friends*

Gentlemen

We go from gay marriages in California, to slavery. I, too am lost. That is because of the Clonazapam, Valium, and my scotch.
I am lost!!!
To my daughters day my friends.
Love one other, you all hold hand for a change, and give each other a hug!
Airborne
De Oppresso Liber


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## PedanticTurkey (Jan 26, 2008)

jackmccullough said:


> The decisions that you decry as "judicial activism", presumably including Brown v. Board of Education, Griswold v. Connecticut, Roe v. Wade, Loving v. Virginia, Lawrence v. Texas, Texas v. Johnson, etc., I would consider examples of sound constitutional jurisprudence.


Yeah, actually, except for _Brown_ and maybe _Loving_.

But let's change the focus of our analysis a little. Would you not agree that the genius of the Constitution is not its pathetic afterthought of a bill of rights (remember "Congress shall make no law"?), but its establishment of a government based on the consent of the governed-- a government that's only allowed to exercise those powers granted it by the people-- a government of limited and enumerated powers.

How then do you explain your position on cases like _Wickard_ or _Dole_ (you'll forgive me if I can't recall the 1930s equivalent) which essentially permit the federal government unlimited, general powers?

The reason is, go figure, because you like an activist court when it makes the "right" decisions, but also prefer it to be activist in its inaction, when it suits your personal politics.

Me, I'm all about the rule of law, and I frown on illegitimate, tyrannical acts of government regardless of whether I like the outcome or not.


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## Wayfarer (Mar 19, 2006)

ksinc said:


> Our 10 year anniversary is coming up and California is on the list, but I don't think it will box out both Ireland & Scotland or even Hawaii. I have a client that has offered an apartment in Paris. Decisions, decisions. I also want to go to Italy. I'm not sure I will ever get to California. If it's not golf, I'm usually more the Cheeca Lodge speed.


Bah, forget Cali and do Arizona up right if you want a Western vacation. From the Grand Canyon, to the White Mountains, southern Arizona, and two great cities plus hundreds of historic little towns, it can't be beat. And golf? We have courses that are the match for CA.

Personally, I'd take Scotland, Paris, and Ireland (in that order).

To the topic: while I am 110% for civil unions, I do not like to see voter initiatives lightly tossed aside and without room for review.


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## Wayfarer (Mar 19, 2006)

Frank aka The Minotaur said:


> No. Eventually it will be measured against the Fourteenth Amendment's equal protection clause. I believe that was one of, if not _the_ basis for Row v. Wade and Lawrence v. Texas (overturning state sodomy laws),* in addition to the perceived and implied (it's not explicit in the Constitution, unfortunately) right to privacy.*


When we travel into the penumbra, we need to remember to wear extra-strong sun block.  If you are arguing for judicial activism, appealing to the "penumbra" is probably exactly the wrong road to take IMO.


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## Frank aka The Minotaur (Nov 12, 2004)

PedanticTurkey said:


> So, in other words, you're saying that there's a "good reason" why children can't get married, and so they're denied equal protection of the laws, but it's okay. Sometimes. In cases where you say it's okay, it's okay.
> 
> Kind of a circular argument, ain't it?


Yes, there is a good reason why children can't get married; there is a good reason why children can't drive cars or operate forklifts; there is a good reason why siblings can't get married; there is a good reason why a surgeon with Alzheimers can no longer practice medicine. But these have nothing to do with "equal rights", more likely with welfare and safety. So if you're trying to be clever, you fail.


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## Cruiser (Jul 21, 2006)

Lushington said:


> Personally, I think every one of the Southern leaders from Davis down to the guy running the printing press should have been hanged, but no one asked me.


And it this were to happen today I would agree with you, but I think you are failing to take into account where the United States was as a nation at that time. Prior to the Civil War many folks still held a stronger allegiance to their State than they did to the United States.

For example, Robert E. Lee, a United States Army officer and West Point graduate was an honorable man who felt that he would be a traitor if he turned his back on his native Virginia after Virginia seceded. While such a notion sounds silly today, Lee and the others did not live "today", they lived in their own time. In short, their choices were not made in the same atmosphere in which we live today.

My favorite example of what I'm talking about comes from "_Huckleberry Finn_" when Huck is debating with himself whether he should turn Jim in or help him escape. He finally concludes that even though it would be a sin and he would likely go to Hell for it, he was going to help Jim. While we now see Huck's decision as not only the right one but also the moral one, in the world in which Huck lived he was committing a sin.

I think we should always view events and decisions in light of the time in which they occurred rather than by current standards. While it doesn't necessarily make those decisions right, it often does help explain them.

Cruiser


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## PedanticTurkey (Jan 26, 2008)

Frank aka The Minotaur said:


> Yes, there is a good reason why children can't get married; there is a good reason why children can't drive cars or operate forklifts; there is a good reason why siblings can't get married; there is a good reason why a surgeon with Alzheimers can no longer practice medicine. But these have nothing to do with "equal rights", more likely with welfare and safety. So if you're trying to be clever, you fail.


I don't think it's clever; it's obvious. And damning.

And just who should make these decisions about welfare and safety? A council of enlightened tyrants, perhaps?


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## Frank aka The Minotaur (Nov 12, 2004)

Wayfarer said:


> When we travel into the penumbra, we need to remember to wear extra-strong sun block.  If you are arguing for judicial activism, appealing to the "penumbra" is probably exactly the wrong road to take IMO.


I don't believe in or accept the term "judicial activism". I think it's right wing rhetoric and a nebulous phrase that keeps getting parroted and regurgitated. I don't believe most of the people who use the term know what they are talking about or have read the cases for which they use the term "judicial activism".


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## Frank aka The Minotaur (Nov 12, 2004)

PedanticTurkey said:


> I don't think it's clever; it's obvious. And damning.
> 
> And just who should make these decisions about welfare and safety? A council of enlightened tyrants, perhaps?


Your state legislators... the ones who are supposed to be making the laws, not your "judicial activists", according to conservatives who cry "Judicial activism!" and "Legislating from the bench!" Read your states' laws and statutes.

Now really, enough of the silliness and strawman arguments.


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## Wayfarer (Mar 19, 2006)

Frank aka The Minotaur said:


> I don't believe in or accept the term "judicial activism". I think it's right wing rhetoric and a nebulous phrase that keeps getting parroted and regurgitated. I don't believe most of the people who use the term know what they are talking about or have read the cases for which they use the term "judicial activism".


And I do not believe a written document has a "penumbra". I think it is a specious creation by activist judges looking to justify their own mores.

What I love best about this Frank? I am 110% for civil unions but you still manage to argue with me and quite plainly show your dislike of me. It is exactly what makes the Interchange to entertaining. Never let the fact the person is on your side get in the way of arguing with him! :icon_smile:


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## PedanticTurkey (Jan 26, 2008)

Frank aka The Minotaur said:


> Your state legislators... the ones who are supposed to be making the laws, not your "judicial activists", according to conservatives who cry "Judicial activism!" and "Legislating from the bench!" Read your states' laws and statutes.
> 
> Now really, enough of the silliness and strawman arguments.


And who was it that said gays could not marry? Oh, so the legislature doesn't get to make _those_ decisions, right?

You keep accusing me of being ignorant, but, let's face it-- it's apparent from this post and others that you're just posturing, and are in fact the one who's ignorant. You're not worth my time.


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## Frank aka The Minotaur (Nov 12, 2004)

Wayfarer said:


> And I do not believe a written document has a "penumbra". I think it is a specious creation by activist judges looking to justify their own mores.
> 
> What I love best about this Frank? I am 110% for civil unions but you still manage to argue with me and quite plainly show your dislike of me. It is exactly what makes the Interchange to entertaining. Never let the fact the person is on your side get in the way of arguing with him! :icon_smile:


I don't dislike you. Whatever negativity you see is what you bring. You're just not seeing the inequality of "civil union" vs. "marriage". If you want to call it civil union, fine. It's a matter of semantics. We've been down this road before regarding the terms civil union vs. marriage, and linguistics. and I'm not going to be drawn further into it or rehash it. I'm sure the thread still exists.

The only further thing I'll say is that if it's called "civil union" it better be called that for heterosexuals too. Otherwise, it's still separate but equal, which is not acceptable.

If you want to reserve "marriage" for a religious function, fine. But keep in mind that there are religious denominations and clergy that WILL perform same-sex "weddings". What do you call it then, especially if those willing clergy are authorized to validate the license?

Where does the inequality and separation of the matter stop?


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## Wayfarer (Mar 19, 2006)

Frank aka The Minotaur said:


> I don't dislike you. *Whatever negativity you see is what you bring.*


First, this is a classic rhetorical play. You can tell me how wrong I am, simplistic, right wing, etc., but if I perceive that as "negative", well it is my baggage. Classic. No Frank, you cannot repeatedly tell a person how deficient they are and then lay any perceived negativity on them. That just ain't how that dog hunts.



Frank aka The Minotaur said:


> You're just not seeing the inequality of "civil union" vs. "marriage". If you want to call it civil union, fine. It's a matter of semantics. We've been down this road before regarding the terms civil union vs. marriage, and linguistics. and I'm not going to be drawn further into it or rehash it. I'm sure the thread still exists.
> 
> The only further thing I'll say is that if it's called "civil union" it better be called that for heterosexuals too. Otherwise, it's still separate but equal, which is not acceptable.
> 
> ...


I do think the government should get out of the "marriage business" and all unions should be civil, as far as the law is concerned. You can form whatever religion you want and call that union whatever you want. As someone that lives an athiest life, it really makes no difference to me how ya'll spend your Sundays :biggrin2: And there will be no state sancationed "gay marriage", just a bunch of civil unions and religious only rites, and we should all be happy.

Somehow, I dout that will make everyone happy though.


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## Frank aka The Minotaur (Nov 12, 2004)

PedanticTurkey said:


> And who was it that said gays could not marry? Oh, so the legislature doesn't get to make _those_ decisions, right?


State attorneys-general, state courts (New Paltz NY; San Francisco CA; Asbury Park NJ gay marriage license cases, anyone?). Look them up.



> You keep accusing me of being ignorant, but, let's face it-- it's apparent from this post and others that you're just posturing, and are in fact the one who's ignorant. You're not worth my time.


I'm suggesting that you are not informed of the laws regarding this matter or the decisions pro or con, and you post emotional and melodramatic rhetoric. If you can refute any of the facts I've posted and show why I'm posturing or why I'm ignorant, please do.


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## Frank aka The Minotaur (Nov 12, 2004)

Wayfarer said:


> First, this is a classic rhetorical play. You can tell me how wrong I am, simplistic, right wing, etc., but if I perceive that as "negative", well it is my baggage. Classic. No Frank, you cannot repeatedly tell a person how deficient they are and then lay any perceived negativity on them. That just ain't how that dog hunts.


I don't think I ever made any attacks on you personally. To point out where someone is wrong or not entirely correct in their facts is not saying they are deficient. And if you think I've attacked you, I'm sorry you feel that way. It was never my intention.



> I do think the government should get out of the "marriage business" and all unions should be civil, as far as the law is concerned. You can form whatever religion you want and call that union whatever you want. As someone that lives an athiest life, it really makes no difference to me how ya'll spend your Sundays :biggrin2: And there will be no state sancationed "gay marriage", just a bunch of civil unions and religious only rites, and we should all be happy.
> 
> Somehow, I dout that will make everyone happy though.


Yes! Now how hard is that for anyone to accept? Unfortunately it would rock the foundations of their belief systems. People cannot handle change or think outside the box. There will always be people who find this solution unacceptable.


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## Senator LooGAR (Apr 19, 2008)

I can't be bothered to read this whole thing, but it was 3 Republicans and 1 Democrat on a rather conservative minded court.

I would like to commend Nancy Pelosi for assuring that every Democrat in a moderate to conservative district will be getting a mail piece sent out against them with her pull quote on it, and her ugly botoxed face to boot.

Yes, Pedantic Turkey, there is a Santa Claus -- maybe the gays can do what Barry and all the other scare tactics couldn't -- cause guys like T. Childers to lose in November.

As to the actual issue -- I couldn't care less either way, but I quote a friend of mine "Why should heteros be the only ones to suffer? Let 'em get married, they'll just end up divorced like teh rest of us."


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## PedanticTurkey (Jan 26, 2008)

Frank aka The Minotaur said:


> State attorneys-general, state courts (New Paltz NY; San Francisco CA; Asbury Park NJ gay marriage license cases, anyone?). Look them up.


Look what up? You're starting to offend me, not so much with your ignorance, but with your arrogance and stupidity in not realizing how you look right now. I can't believe you've gotten this far thinking that the attorney general is the one who writes the marriage laws.



> I'm suggesting that you are not informed of the laws regarding this matter or the decisions pro or con, and you post emotional and melodramatic rhetoric. If you can refute any of the facts I've posted and show why I'm posturing or why I'm ignorant, please do.


What facts would those be? You're talking out your ass.


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## Lushington (Jul 12, 2006)

Cruiser said:


> And it this were to happen today I would agree with you, but I think you are failing to take into account where the United States was as a nation at that time. Prior to the Civil War many folks still held a stronger allegiance to their State than they did to the United States.
> 
> For example, Robert E. Lee, a United States Army officer and West Point graduate was an honorable man who felt that he would be a traitor if he turned his back on his native Virginia after Virginia seceded. While such a notion sounds silly today, Lee and the others did not live "today", they lived in their own time. In short, their choices were not made in the same atmosphere in which we live today.


Actually, Robert Lee should have been the first Confederate hanged. Grant should have had him arrested at Appomattox, stripped of any insignia of rank, and summarily tried and hanged as a traitor. Or blown from the muzzle of a gun. All this "honorable" man stuff about Lee is crap. Lee came from a family famous for its role in founding the United States, not simply Virginia He attended the U.S. Military Academy, not the Virginia Military Institute, he was commissioned in the United States Army, not the Virginia State Militia, and he served in the Mexican-American War, not the Mexican-Virginian War. If he truly believed that his claimed superior allegiance to The Old Dominion required him to take up arms against the United States, then he was dumber than Traveler. He knew exactly what he was doing. They all did. The Civil War was a struggle between competing factions for the economic form of the American Empire. It got quickly out of hand, and both sides began mythologizing in earnest to justify the scale of the conflict. For the North, the war was said to be about freedom and the end of human bondage; for the South it was said to be about States Rights and allegiance to one's own. Both sides were talking bullshite.


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## PedanticTurkey (Jan 26, 2008)

Senator LooGAR said:


> Yes, Pedantic Turkey, there is a Santa Claus -- maybe the gays can do what Barry and all the other scare tactics couldn't -- cause guys like T. Childers to lose in November.


Man, I hope so. Unfortunately, the lefties have a long history of letting the courts do their dirty work for them-- and getting away with it.

That's kind of the idea.


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## Frank aka The Minotaur (Nov 12, 2004)

PedanticTurkey said:


> Look what up? You're starting to offend me, not so much with your ignorance, but with your arrogance and stupidity in not realizing how you look right now. I can't believe you've gotten this far thinking that the attorney general is the one who writes the marriage laws.
> 
> What facts would those be? You're talking out your ass.


An ad hominem. I wondered how long before you'd stoop to it.

I didn't say that attorneys-general wrote the laws. It was they and the courts who overturned and declared illegal gay marriage licenses issued in those jurisdictions. Stop reading what you want to read, and read what's there.

I'm done with you and this pissing contest. Now you can have the last word.


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## jackmccullough (May 10, 2006)

Lushington said:


> Actually, Robert Lee should have been the first Confederate hanged. Grant should have had him arrested at Appomattox, stripped of any insignia of rank, and summarily tried and hanged as a traitor. Or blown from the muzzle of a gun. All this "honorable" man stuff about Lee is crap. Lee came from a family famous for its role in founding the United States, not simply Virginia He attended the U.S. Military Academy, not the Virginia Military Institute, he was commissioned in the United States Army, not the Virginia State Militia, and he served in the Mexican-American War, not the Mexican-Virginian War. If he truly believed that his claimed superior allegiance to The Old Dominion required him to take up arms against the United States, then he was dumber than Traveler. He knew exactly what he was doing.


I assume that the oath of office that he took was similar to the one that officers take now: i.e., of allegiance to the United States.


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## mpcsb (Jan 1, 2005)

I'm as thrilled as I can be. Finally, a conservative court used reason not religion to reach a decission. Cheers to the activist judges who came to the same conclusion as the activist legislature (sp?) and the activist governor who vetoed them and said the court should decide. I'll be toasting them tonight - :aportnoy:


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## Lushington (Jul 12, 2006)

jackmccullough said:


> I assume that the oath of office that he took was similar to the one that officers take now: i.e., of allegiance to the United States.


It was similar, but the prefatory section in which an officer swore to support and defend the Constitution provided a loophole for the likes of Lee, as the South was claiming a constitutional right to secede from the Union. And stop and think about the absurdity of that claim for a moment: what nation in the history of the world has ever been so organized that its constituent parts might come and go as they please? The whole purpose of the 1787 constitution was to form a "more perfect union."


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## ksinc (May 30, 2005)

jackmccullough said:


> Having trouble reading, PT?
> 
> I actually believe in the whole Constitution, including the amendments, which ksinc apparently doesn't. (Not surprising to hear that coming from someone who apparently thinks the traitors who attempted to secede from the Union were justified in going to war to defend the right to own human beings.)


Jack,

We disagree on most of things, but I have always been sincere in discussions with you and respected/conceded points when you brought facts to the table. Intentionally distorting what I said is not civil and saying "apparently thinks" when you know it's not true is offensive and rude. That might be legitimiate if you didn't know better. Since you have some history with me, you should know I'm a stand-up person and I apologize when I screw the pooch here either by omission, mistatement or whatever (I think I did it in this thread even). I expect the same courtesy and honesty in return.

I'm only bothering to address this because you have not done this before and we have discussed a lot of things on which we disagree. Therefore I know you are capable of it, but whether you choose to do it or not is up to you.

Have a great day,

SK


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## PedanticTurkey (Jan 26, 2008)

Interesting. Remind me where the word "nation" or comparable language referring to the "United States" as a nation appears in the Constitution.


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## ksinc (May 30, 2005)

Frank aka The Minotaur said:


> While there is no explicit provision for _any_ marriage in either constitution, if a consenting adult heterosexual couple can obtain a duly issued marriage license by the state (a procedure implied in the US Constitution, which I believe will show the unconstitutionality of state bans on gay marriage and DOMA), so can a consenting adult homosexual couple.


That's sensible and well put. I personally disagree with one facet in that I think the US Constitution allows the state to regulate those things not explicitly in the US Constitution which you stated as a basis of agreement.

I think there are a lot of people like myself that are not gay, but are not explicitly anti-gay that are on the other side of this issue because of what I will call "the reading between the lines" being done in the Constitution. That falls under the activist heading. I think maybe we need a distinction that people can discuss rationally. As I said, I just want consistency on where our rights in social matters are established.

Someone mentioned the reciprocity issue which was already settled by Congress. Clearly if reciprocity was abridged (and it was) then that signals the acceptance by Congress of the State's rights to regulate marriage independently. That works for me and I just want other issues sent back there as well.


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## ksinc (May 30, 2005)

Cruiser said:


> And it this were to happen today I would agree with you, but I think you are failing to take into account where the United States was as a nation at that time. Prior to the Civil War many folks still held a stronger allegiance to their State than they did to the United States.
> 
> For example, Robert E. Lee, a United States Army officer and West Point graduate was an honorable man who felt that he would be a traitor if he turned his back on his native Virginia after Virginia seceded. While such a notion sounds silly today, Lee and the others did not live "today", they lived in their own time. In short, their choices were not made in the same atmosphere in which we live today.
> 
> ...


Yes, that's true they lived as citizens of States. They had State currencies, State armies, and they had an awareness of State Constitutions as their protector of individual rights. The US Constitution was still viewed a limiting bargain beteween the Federal Government and the States not as an enabler of individuals.


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## jackmccullough (May 10, 2006)

ksinc said:


> Jack,
> 
> We disagree on most of things, but I have always been sincere in discussions with you and respected/conceded points when you brought facts to the table. Intentionally distorting what I said is not civil and saying "apparently thinks" when you know it's not true is offensive and rude. That might be legitimiate if you didn't know better. Since you have some history with me, you should know I'm a stand-up person and I apologize when I screw the pooch here either by omission, mistatement or whatever (I think I did it in this thread even). I expect the same courtesy and honesty in return.
> 
> ...


Fair enough. I'll be more explicit. Your post suggested that you think the south was within its rights in trying to secede, and in starting the Civil War. I entirely disagree with that. I also tend to get upset when people whom I would label neo-confederates make the patently false claim that the southern states were not seceding because of slavery, which may have led to a less moderate tone than I usually adopt.

Finally, since you were talking about preferring the Constitution as it was originally written, I figured it was fair game to point out certain differences between the Constitution as it was originally written and the Constitution the way it is now.

Speaking of "judicial activism" and the proper scope of constitutional interpretation, if I were asked what I consider the most outrageous (before Bush v. Gore) example of constitutional jurisprudence I would have to say it was _Hans v. Louisiana_, which blatantly and without any intellectual foundation rewrote the Eleventh Amendment.


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## Quay (Mar 29, 2008)

Folks keep using the words "judicial activism" as if it means anything. As I noted previously:

"_Judicial activism_: a short, worrisome-sounding phrase lobbed at judges who issue a ruling one disagrees with despite all evidence of law, fact, precedent and history to the contrary. In other words, a phrase with no actual meaning."

Now let's go further and break it down.

_Judicial:_ adj. of, by, or appropriate to a court or judge. In usage, "Judicial means 'relating to judgment and the administration of justice'"
_
Activism:_ n. the policy or action of using vigorous campaigning to bring about political or social change.

The judicial part should be clear enough. But how does a court ruling become a "vigorous campaign" against anything? Where is the campaign? Where is the vigor? A ruling may bring about change but there is no campaign involved. Therefore this phrase is actually meaningless while still being put forth as if it has meaning, usually as a shibboleth against those with whom one does not agree.

In short, it's used as a defamatory label that does not advance any argument or position but rather attempts to count as a personal or group insult. Persons using this phrase show, in absence of any other evidence, the tenuous nature of their position.

"Activist judge" is a similar meaningless phrase as it's the singular actor of the above action plural.

Cordially,
Adrian Quay


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## Frank aka The Minotaur (Nov 12, 2004)

ksinc said:


> I think the US Constitution allows the state to regulate those things not explicitly in the US Constitution which you stated as a basis of agreement.


That's true, I never intended to imply otherwise... it is up to the states to enact and regulate certain procedures, laws and institutions.

However, the US Constitution in the Fourteenth Amendment states (in part):

_Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; *nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.*_ (emphasis mine).

That basically is all the "equal rights" laws we need. That says the states cannot enact a law (issuing a marriage license) for heterosexuals and not for homosexuals. Especially when all other things are equal (i.e. consenting adults).


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## ksinc (May 30, 2005)

Lushington said:


> Actually, Robert Lee should have been the first Confederate hanged. Grant should have had him arrested at Appomattox, stripped of any insignia of rank, and summarily tried and hanged as a traitor. Or blown from the muzzle of a gun. All this "honorable" man stuff about Lee is crap. Lee came from a family famous for its role in founding the United States, not simply Virginia He attended the U.S. Military Academy, not the Virginia Military Institute, he was commissioned in the United States Army, not the Virginia State Militia, and he served in the Mexican-American War, not the Mexican-Virginian War. If he truly believed that his claimed superior allegiance to The Old Dominion required him to take up arms against the United States, then he was dumber than Traveler. He knew exactly what he was doing. They all did. The Civil War was a struggle between competing factions for the economic form of the American Empire. It got quickly out of hand, and both sides began mythologizing in earnest to justify the scale of the conflict. For the North, the war was said to be about freedom and the end of human bondage; for the South it was said to be about States Rights and allegiance to one's own. Both sides were talking bullshite.


I actually agree and I think it's why Lee should have kept fighting. I think it speaks simply to the lack of conviction most of the North had compared to what we are currently taught in the history books. Clearly, the South should have known that secession was a one-way street - do or die (whether by arms or at the end of a rope). The ending of the war was as screwed up if not more than the starting of it and the lack of true closure doomed reconstruction IMHO. The founders pledged their lives and yet almost 100 years later we are surrendering rather fighting to the death for our freedoms. Almost another 100 years later the most apathetic, self-absorbed generation of our times was coming of age and screwing up the country. I find that to be an odd coincidence. 2065-2075 isn't looking too good!


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## PedanticTurkey (Jan 26, 2008)

Quay said:


> Folks keep using the words "judicial activism" as if it means anything. As I noted previously:
> 
> "_Judicial activism_: a short, worrisome-sounding phrase lobbed at judges who issue a ruling one disagrees with despite all evidence of law, fact, precedent and history to the contrary. In other words, a phrase with no actual meaning."
> 
> ...


Ohhh, he's got the dictionary! Next time, try looking up "judicial activism" which has an entry in many modern dictionaries...

Or, hell, you can just google it:



> _Judicial activism_ is the term used to describe the actions of judges who go beyond their constitutionally prescribed duties of applying law to the facts of individual cases, and "legislate" from the bench. These judges create new constitutional rights, amend existing ones, or create or amend existing legislation to fit their own notions of societal needs.


It's hardly meaningless and those of us who are trained in the law have a pretty keen understanding of what it is.


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## ksinc (May 30, 2005)

jackmccullough said:


> Fair enough. I'll be more explicit. Your post suggested that you think the south was within its rights in trying to secede, and in starting the Civil War. I entirely disagree with that. I also tend to get upset when people whom I would label neo-confederates make the patently false claim that the southern states were not seceding because of slavery, which may have led to a less moderate tone than I usually adopt.
> 
> Finally, since you were talking about preferring the Constitution as it was originally written, I figured it was fair game to point out certain differences between the Constitution as it was originally written and the Constitution the way it is now.
> 
> Speaking of "judicial activism" and the proper scope of constitutional interpretation, if I were asked what I consider the most outrageous (before Bush v. Gore) example of constitutional jurisprudence I would have to say it was _Hans v. Louisiana_, which blatantly and without any intellectual foundation rewrote the Eleventh Amendment.


In reverse order:

I don't think I argued activism per se, but perhaps I did. I am more concerned with jurisdiction and the fantasy perpetuated on the electorate that State's still have rights as a political issue every four years.

Clarification: the Bill of Rights was required for ratification and I therefore consider it part of the Original Constitution; a quibble I know, sorry. I enjoy the original amendments 1-10 + 27. I think slavery was already un-Constitutional, but that's just me. The 3/5ths thing is called "the compromise" and like most compromises it was a mistake IMHO. Even the 19th which achieved a good goal, was a screw up and has no place in the US Constitution IMHO.

Secession was absolutely a right and legal. If States have no right to un-join then their joining is made meaningless. AFAIK the record states that no one at West Point would argue otherwise in court at the time of Davis' indictment. Davis was indicted, held for two years, not tried and released, the court refused to revoke the indictment so Davis was offered a pardon which he refused because secession was not illegal and he knew he would be setting a precedent by accepting a pardon for it. Abe Lincoln says the Civil War was not about slavery until he made it so in 1863? I might have the date wrong. If you want to call Abe a liar and a scoundrel I certainly won't be the one to argue with you!

Thanks Jack!


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## jackmccullough (May 10, 2006)

Since Abraham Lincoln didn't start the Civil War it might make sense to look at what those who did said about it. If you look at the secession resolutions you see that it is very clear that the reason they were attempting to secede is because they wanted to protect their own institutions, i.e. slavery.

As for the right to secede, the Supremacy Clause says that the Constitution and laws of the United States are the supreme law of the land, binding on all the states. Since that Constitution establishes the entire structure of the national government, it's hard to picture how a state can opt out of that structure, consistent with the Supremacy Clause.


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## ksinc (May 30, 2005)

Frank aka The Minotaur said:


> That's true, I never intended to imply otherwise... it is up to the states to enact and regulate certain procedures, laws and institutions.
> 
> However, the US Constitution in the Fourteenth Amendment states (in part):
> 
> ...


Yes, I am agreeing with you in part, but that's my point of disagreement. I was falling back on my previous commetns said earlier and the lawyers disagreed. Common sense tells you it's either A or B (or should be). The fourteenth clearly made it B. Either get rid of the 14th or accept it is the Feds who decide all issues related to "any persons life, liberty, or proprety" or as I said "all these things."

I'm happy with either A or B, but not A and B based on who is in control of the government or which lawyer argues jurisdiction the best.

Your fundamental argument is sound IMHO in that if sexual preference is protected then marriage being overseen by the States would be the overriding principle. I think you will find Conservatives don't really argue that point, Republicans might. Even a guy like Huckabee, who I consider a loon and not a Conservative, distinguishes that he has a "Covenant Marriage" which is the latest tactic to raise marriage above the state contract jurisdictional level.

IIRC you're happily married and I continue to wish you the best. My interest is intellectual/logical consistency, common sense, and getting people to move on with whatever the law is going to be. "Cake or Death" as it were. :icon_smile:


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## ksinc (May 30, 2005)

jackmccullough said:


> Since Abraham Lincoln didn't start the Civil War it might make sense to look at what those who did said about it. If you look at the secession resolutions you see that it is very clear that the reason they were attempting to secede is because they wanted to protect their own institutions, i.e. slavery.
> 
> As for the right to secede, the Supremacy Clause says that the Constitution and laws of the United States are the supreme law of the land, binding on all the states. Since that Constitution establishes the entire structure of the national government, it's hard to picture how a state can opt out of that structure, consistent with the Supremacy Clause.


Yes, slavery was indeed one of the institutions and a major contributing factor, but clearly not the only reason for secession. Many anti-slavery advocates argued for secession. I could go find the names, but I would have to re-research it. I remember it was some very visible names. Abe was all about manipulating behind the scenes such as via the Finance Committee in the Senate to strip States of their rights and identities as independent agents. He was an active proponent of that view long before he was President. He, as much as anyone, proposed the view that started the war (therefore started the war).

Simple, binding on the States in the Union. Just as your wife has supremecy until you get divorced.


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## PedanticTurkey (Jan 26, 2008)

jackmccullough said:


> Since Abraham Lincoln didn't start the Civil War


That's a remarkable statement, since, you know, it's completely false.



> As for the right to secede, the Supremacy Clause says that the Constitution and laws of the United States are the supreme law of the land, binding on all the states. Since that Constitution establishes the entire structure of the national government, it's hard to picture how a state can opt out of that structure, consistent with the Supremacy Clause.


Yes, that's what the Supremacy clause says. But what does the Constitution say about succession?

It's silent on the issue. And what of things upon which the Constitution is silent: they are reserved to the _____ respectively, or to the people?


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## Quay (Mar 29, 2008)

PedanticTurkey said:


> Ohhh, he's got the dictionary! Next time, try looking up "judicial activism" which has an entry in many modern dictionaries...
> 
> Or, hell, you can just google it:
> 
> It's hardly meaningless and those of us who are trained in the law have a pretty keen understanding of what it is.


Your selection of a highly biased interpretation from a plethora of choices is certainly revealing of your underlying personal philosophy. Even so, it's clear "judicial activism" is at best a controversial phrase with no fixed meaning and is currently employed as a political tool by those unable or too lazy to come up with a valid argument against a position they find not to their liking.

I shall cease worrying over this definition and retire to the bar as those with claims of "training" are taking the fore.

Cordially,
Adrian Quay

PS
Whatever the merits of anyone's arguments, it is certainly fascinating that this thread has become so full of diverse subjects from its relatively dry start.


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## PedanticTurkey (Jan 26, 2008)

Gee, I didn't know you could destroy the meaning of a phrase by offering an alternative definition.


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## ksinc (May 30, 2005)

Quay said:


> I shall cease worrying over this definition and retire to the bar as those with claims of "training" are taking the fore.
> 
> Cordially,
> Adrian Quay
> ...


Hah! It's a little early out there for 'clear scotch' isn't it? 

Well, that's my fault. I would rather argue the broader concepts and try to re-trace our steps and get back to a sane government than argue the details of same-sex marriage. Otherwise, we will all be on this kind of stuff for the next 50 years. If we can't agree on the rules, then arguing the decisions doesn't make any sense to me.

I want *CHANGE*! :icon_smile_big:


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## Senator LooGAR (Apr 19, 2008)

PedanticTurkey said:


> That's a remarkable statement, since, you know, it's completely false.
> 
> Yes, that's what the Supremacy clause says. But what does the Constitution say about succession?
> 
> It's silent on the issue. And what of things upon which the Constitution is silent: they are reserved to the _____ respectively, or to the people?


I think your first statement is open to interpretation. Its not as if the President could just let 11 states leave the Union. So, in effect one can argue that the act of Secession was tantamount to a declaration of war.

That said, I agree they were within their legal rights to do so at the time.


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## Quay (Mar 29, 2008)

PedanticTurkey said:


> Gee, I didn't know you could destroy the meaning of a phrase by offering an alternative definition.


You certainly can try if your intent is to create novel meaning in a phrase by saddling it with specious words and perverted interpretations. Historically, this was a favorite method of Soviet propagandists.

Cordially,
Adrian Quay


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## 16412 (Apr 1, 2005)

Frank aka The Minotaur said:


> Your state legislators... the ones who are supposed to be making the laws, not your "judicial activists", according to conservatives who cry "Judicial activism!" and "Legislating from the bench!" Read your states' laws and statutes.
> 
> Now really, enough of the silliness and strawman arguments.


Then the Nazis were not wrong in railroading millions of Jews and who ever else they wanted to railroad. Abortion is the same as the Nazis railroading who they didn't want.

Your idea about law is a bit twisted.


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## Quay (Mar 29, 2008)

ksinc said:


> Hah! It's a little early out there for 'clear scotch' isn't it? ....


Blast it all, yes it is. I must wait until a better hour. While I'm all for discussions of many things I usually don't engage my brethren of the bar at a bar unless absolutely necessary. Why mix work with pleasure?

Cordially,
Adrian Quay


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## ksinc (May 30, 2005)

Quay said:


> Blast it all, yes it is. I must wait until a better hour. While I'm all for discussions of many things I usually don't engage my brethren of the bar at a bar unless absolutely necessary. Why mix work with pleasure?
> 
> Cordially,
> Adrian Quay


Now you understand the true industriousness of the Scots-Irish spirits. We can start spiking our drinks after the 2nd cup of coffee for the day! :icon_smile_big:


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## PedanticTurkey (Jan 26, 2008)

Quay said:


> You certainly can try if your intent is to create novel meaning in a phrase by saddling it with specious words and perverted interpretations. Historically, this was a favorite method of Soviet propagandists.
> 
> Cordially,
> Adrian Quay


Well, that's, that's quite an admission. You didn't forget which side you're arguing on this, did you?


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## Quay (Mar 29, 2008)

ksinc said:


> Now you understand the true industriousness of the Scots-Irish spirits. We can start spiking our drinks after the 2nd cup of coffee for the day! :icon_smile_big:


Well I must concede this point then. There is a benefit to these murky spirits. They go into coffee without complaint. Something to be said for that!

Cordially,
Adrian Quay


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## ksinc (May 30, 2005)

Quay said:


> Well I must concede this point then. There is a benefit to these murky spirits. They go into coffee without complaint. Something to be said for that!
> 
> Cordially,
> Adrian Quay


Your credentials as an honest broker are long secured, Sir!


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## Quay (Mar 29, 2008)

PedanticTurkey said:


> Well, that's, that's quite an admission. You didn't forget which side you're arguing on this, did you?


Not an admission, counselor (and you obviously know that unless perhaps you flunked out of a third tier) but an observation of what some have written and pure speculation as to why.

I happily concede that I cannot win this argument with you as your arsenal contains things too perverse for me to consider. Motion granted to treat the phrase "judicial activism" as if having a valid meaning.

Cordially,
Adrian Quay


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## Frank aka The Minotaur (Nov 12, 2004)

WA said:


> Then the Nazis were not wrong in railroading millions of Jews and who ever else they wanted to railroad. Abortion is the same as the Nazis railroading who they didn't want.
> 
> Your idea about law is a bit twisted.


Your comparison is more than twisted. How can you compare Nazi Germany to the United States? No one forces anyone to get an abortion. It's an option that's available to women. Where do some of you people get these garbage arguments from? Too much pizza and Chinese food before bed!?


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## PedanticTurkey (Jan 26, 2008)

Quay said:


> Not an admission, counselor (and you obviously know that unless perhaps you flunked out of a third tier) but an observation of what some have written and pure speculation as to why.


I think you must have a very short memory, considering that not five posts above this one, you tried to construct an alternative definition of judicial activism from its component words, something not even a 1L would attempt, even at a third-tier school. At least, I hope not.



> I happily concede that I cannot win this argument with you . . . .


Good. I appreciate candor as much as anyone.



> [...]as your arsenal contains things too perverse for me to consider. Motion granted to treat the phrase "judicial activism" as if having a valid meaning.


What, are you the judge now too?


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## jackmccullough (May 10, 2006)

PedanticTurkey said:


> There's no such thing as a "Republican" judge, anyway.
> QUOTE]
> 
> Really? Is there any such thing as a "Democratic judge" or a "liberal judge"?
> ...


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## PedanticTurkey (Jan 26, 2008)

Is there any state in the country that lets judges run on a party ticket?


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## Quay (Mar 29, 2008)

Yes, bad memory and all that. I'm just a fool whose words are full of sound and fury, signifying nothing.

Cordially,
Adrian Quay


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## PedanticTurkey (Jan 26, 2008)

Quay said:


> Yes, bad memory and all that. I'm just a fool whose words are full of sound and fury, signifying nothing.
> 
> Cordially,
> Adrian Quay


Your problem isn't with finding words-- it's with assembling them into arguments.


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## Quay (Mar 29, 2008)

PedanticTurkey said:


> Your problem isn't with finding words-- it's with assembling them into arguments.


How kind of you to do me the courtesy of pointing out my problem. I will try to learn something from your examples.

Cordially,
Adrian Quay


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## PedanticTurkey (Jan 26, 2008)

You're still the guy who tried to attack a term of art with the definitions of its component words. So, spare me.


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## Quay (Mar 29, 2008)

PedanticTurkey said:


> You're still the guy who tried to attack a term of art with the definitions of its component words. So, spare me.


I shall gladly spare you anything you wish sight unseen, artful or artless. Your keenly trained mind vanquishes my poor capacities. Totally conceded. And I'll make this my last post in reply to this as you enjoy having the last word.

Cordially,
Adrian Quay


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## PedanticTurkey (Jan 26, 2008)

Yeah. You might want to put the thesaurus down as it's not helping you much either.


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## jackmccullough (May 10, 2006)

PedanticTurkey said:


> You're still the guy who tried to attack a term of art with the definitions of its component words. So, spare me.


It's not a term of art, it's a political label used, generally by conservatives, to attack judicial decisions they don't agree with. Nothing you've said in this thread negates that.


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## jackmccullough (May 10, 2006)

PedanticTurkey said:


> Is there any state in the country that lets judges run on a party ticket?


Of course. Given Fredo's history, Texas may be the most striking example at present.

https://www.texas-opinions.com/2008-Judicial-Election-Campaign.html


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## PedanticTurkey (Jan 26, 2008)

jackmccullough said:


> Of course. Given Fredo's history, Texas may be the most striking example at present.
> 
> https://www.texas-opinions.com/2008-Judicial-Election-Campaign.html


Wonderful. I didn't know I could have a lower opinion of judicial elections.



jackmccullough said:


> It's not a term of art, it's a political label used, generally by conservatives, to attack judicial decisions they don't agree with. Nothing you've said in this thread negates that.


I quoted a widely-accepted and very specific definition. You reply with bald political assertions that make you sound like a child yelling, "nuh uh."


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## ksinc (May 30, 2005)

jackmccullough said:


> Of course. Given Fredo's history, Texas may be the most striking example at present.
> 
> https://www.texas-opinions.com/2008-Judicial-Election-Campaign.html


I was actually going to guess at Texas, but I thought I was confusing DA. I remember something when that DA was going after the DeLay. There was some arguing about finding impartial judges. My memory is vague on the specifics.


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## jackmccullough (May 10, 2006)

ksinc said:


> I was actually going to guess at Texas, but I thought I was confusing DA. I remember something when that DA was going after the DeLay. There was some arguing about finding impartial judges. My memory is vague on the specifics.


It's not just Texas. I used to practice in Michigan, and I'm pretty sure we had partisan judicial elections there. They probably do the same thing in other states, and there are some states where judicial elections are nominally nonpartisan, but you'd hardly be able to tell, or the nominations are partisan and the elections are nonpartisan.


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## Lushington (Jul 12, 2006)

PedanticTurkey said:


> Interesting. Remind me where the word "nation" or comparable language referring to the "United States" as a nation appears in the Constitution.


Oh dear. The Constitution is a blueprint for a national government. This is indisputable. This is obvious. This is also plain in the notes to the debates; and in the early Federalist papers this was frankly stated:



> A strong sense of the value and blessings of union induced the people, at a very early period, to institute a federal government to preserve and perpetuate it. They formed it almost as soon as they had a political existence; nay, at a time when their habitations were in flames, when many of their citizens were bleeding, and when the progress of hostility and desolation left little room for those calm and mature inquiries and reflections which must ever precede the formation of a wise and well-balanced government for a free people. It is not to be wondered at, that a government instituted in times so inauspicious, should on experiment be found greatly deficient and inadequate to the purpose it was intended to answer.
> 
> This intelligent people perceived and regretted these defects. Still continuing no less attached to union than enamored of liberty, they observed the danger which immediately threatened the former and more remotely the latter; and being pursuaded that ample security for both could only be found in a national government more wisely framed, they as with one voice, convened the late convention at Philadelphia, to take that important subject under consideration.


 I suppose one could argue that some entity other than a "nation" might feature a "national" government, but I wouldn't want to do so. The national character of the proposed Union was also clear to the Anti-federalists, and once they got traction the Federalists, Madison especially, toned down the express nationalist rhetoric. This hardly matters. True, the Constitution itself doesn't contain much express language regarding nationhood; but this is like arguing that your house isn't a house because the word "house" is not emblazoned over the doorway. The few express references are plain enough: e.g., Article I, Section 8 empowers Congress "To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations." If the United States as constructed by the Constitution was not intended to be a "nation" this would be meaningless power. And now let me impart a secret: the Constitution as drafted is not Holy Writ, but a compromise document intended to appeal to the widest possible constituency (note the similarity of the words) and - here comes the secret - the absence of express nationalist language made it easier to ratify, which was its proponents' goal. Clever chaps, those Framers (which always evokes the image of group of men in powered wigs and silk knee breeches, with tool belts and nail bags around their waists.)

In either event, I'm not a textualist; I'm a realist. The United States from its inception desired a prominent place among the Nations of the Earth, and that's all that matters. The Constitution was viewed as an expeditious means to achieve this, and so it proved to be. But you appear to a textualist; if so, please explain this bit:



> _Judicial activism_ is the term used to describe the actions of judges who go beyond their *constitutionally prescribed duties of applying law to the facts of individual cases*, and "legislate" from the bench. These judges create new constitutional rights, amend existing ones, or create or amend existing legislation to fit their own notions of societal needs.


You, apparently, place great store in this definition; so if it isn't too much trouble can you please direct me to the part of the Constitution that "prescribes" such judicial duties as are identified in the bolded language above. Thanks.


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## PedanticTurkey (Jan 26, 2008)

Lushington said:


> Oh dear. The Constitution is a blueprint for a national government. This is indisputable. This is obvious. It is also plain in the notes to the debates; and in the early Federalist papers this was frankly stated:


It's not so obvious. I think your knowledge of the drafting and ratification must be second-hand, because the issue of "is this a nation" came up pretty frequently and the question was deliberately avoided as a compromise.



> I suppose one could argue that some entity other than a "nation" might feature a "national" government, but I wouldn't want to do so. The national character of the proposed Union was also clear to the Anti-federalists, and once they got traction the Federalists, Madison especially, toned down the express nationalist rhetoric. This hardly matters. True, the Constitution itself doesn't contain much express language regarding nationhood; but this is like arguing that your house isn't a house because the word "house" is not emblazoned over the doorway. The few express references are plain enough: e.g., Article I, Section 8 empowers Congress "To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations." If the United States as constructed by the Constructed was not intended to be a "nation" this would be meaningless power. And now let me impart a secret: the Constitution as drafted is not Holy Writ, but a compromise document intended to appeal to the widest possible constituency (note the similarity of the words) and - here comes the secret - the absence of express nationalist language made it easier to ratify, which was its proponents' goal. Clever chaps, those Framers (which always evokes the image of group of men in powered wigs and silk knee breeches, with tool belts and nail bags around their waists.)


Okay, so you do know what I'm talking about.

So why is it so obvious again?



> In either event, I'm not a textualist; I'm a realist. The United States from its inception desired a prominent place among the Nations of the Earth, and that's all that matters. The Constitution was viewed as an expeditious means to achieve this, and so it proved to be. But you appear to a textualist; if so, please explain this bit:
> 
> You, apparently, place great store in this definition; so if it isn't too much trouble can you please direct me to the part of the Constitution that "prescribes" such judicial duties as are identified in the bolded language above. Thanks.


The case or controversy clause?


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## ksinc (May 30, 2005)

PedanticTurkey said:


> I think your knowledge of the drafting and ratification must be second-hand


Either that or he's really, really old 

You're not being very pedantic for a turkey :devil:


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## PedanticTurkey (Jan 26, 2008)

ksinc said:


> Either that or he's really, really old
> 
> You're not being very pedantic for a turkey :devil:


Yes, the handle is meant to be ironic.


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## 16412 (Apr 1, 2005)

Frank aka The Minotaur said:


> Your comparison is more than twisted. How can you compare Nazi Germany to the United States? No one forces anyone to get an abortion. It's an option that's available to women. Where do some of you people get these garbage arguments from? Too much pizza and Chinese food before bed!?


The child that is aborted is a real person. Who asked the child? The comparison is absolute with Nazi Germany. Who has the right to say that the unborn isn't a human? What's next on the list? Old people should have their lives aborted legally? Just because people don't agree today will it make it right tomorrow?

What is real law? Man does not make real law, we struggle to find it. That is why Nazi Germany is wrong- it tried to create law outside the real boundaries. So, the justices have to deal with more than the written laws and popular ideas. What is real marriage? Since the justices really don't know- how can they make a judgement?


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## Howard (Dec 7, 2004)

So,why don't most states approve of gay marriage?


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## 16412 (Apr 1, 2005)

Frank aka The Minotaur said:


> There are some theories that homosexulity may have evolved in humans and other animals to help in raising offspring, and possibly giving them and the clan, tribe, herd, a better chance for survival.


Your reasoning is very good showing that there is no evolved humans. Your teacher really knows how to twist reasoning so you and him believe the opposite of what he just taught. You should see what is wrong with what you said, because it is no defense for evolution. But is the opposite. I doubt your teacher see's it, too.

Your description shows of some sort of intelligent design, because evolution can not think to plan. Evolution is pure mindless, because it has no mind to think with. Evolution is pure chance. So, how can it help itself?


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## ksinc (May 30, 2005)

Howard said:


> So,why don't most states approve of gay marriage?


Because in most states about 65-85% of the electorate doesn't support such recognition. In the broader country it's only 55% oppose same-sex marriage. California really skews the numbers, as usual.


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## Quay (Mar 29, 2008)

ksinc said:


> Because in most states about 65-85% of the electorate doesn't support such recognition. In the broader country it's only 55% oppose same-sex marriage. California really skews the numbers, as usual.


No "skewing" at all. Just depends on how you do the counting, by state political boundaries or by the national boundary. As the most populous state California has a lot of influence but it's not skewering anyplace else. Except maybe Texas. Which would be more of a gig than a skewer now that I think about it.

Cordially,
Adrian Quay, CA resident but not a native.


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## Frank aka The Minotaur (Nov 12, 2004)

WA said:


> The child that is aborted is a real person. Who asked the child? The comparison is absolute with Nazi Germany. Who has the right to say that the unborn isn't a human? What's next on the list? Old people should have their lives aborted legally? Just because people don't agree today will it make it right tomorrow?
> 
> What is real law? Man does not make real law, we struggle to find it. That is why Nazi Germany is wrong- it tried to create law outside the real boundaries. So, the justices have to deal with more than the written laws and popular ideas. What is real marriage? Since the justices really don't know- how can they make a judgement?


The right to abortion, while I don't agree with abortion itself, is the law of the land. If you don't like it, move. Until then, it is what it is. Your comparison to Nazi Germany is hysterical rhetoric. I won't be drawn into this trolling, which is what you are doing. Move along to your next quarry.


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## ksinc (May 30, 2005)

Quay said:


> No "skewing" at all. Just depends on how you do the counting, by state political boundaries or by the national boundary. As the most populous state California has a lot of influence but it's not skewering anyplace else. Except maybe Texas. Which would be more of a gig than a skewer now that I think about it.
> 
> Cordially,
> Adrian Quay, CA resident but not a native.


That is what "skew" _*means*_.

It's statistics, not BBQ (skewering).


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## Frank aka The Minotaur (Nov 12, 2004)

WA said:


> Your reasoning is very good showing that there is no evolved humans. Your teacher really knows how to twist reasoning so you and him believe the opposite of what he just taught. You should see what is wrong with what you said, because it is no defense for evolution. But is the opposite. I doubt your teacher see's it, too.
> 
> Your description shows of some sort of intelligent design, because evolution can not think to plan. Evolution is pure mindless, because it has no mind to think with. Evolution is pure chance. So, how can it help itself?


Ah! Now I understand... a creationist... 

'Kthxbye.


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## Quay (Mar 29, 2008)

ksinc said:


> That is what "skew" _*means*_.
> 
> It's statistics, not BBQ (skewering).


I understand the different words but did not make my attempt at levity clear. The fault is mine. Next time I'll add a smilie.

In any case, Californians might skew a result now and then but Texans are the leader in skewering, and certainly in more things than barbecue.

Cordially,
Adrian Quay


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## Quay (Mar 29, 2008)

Frank aka The Minotaur said:


> Ah! Now I understand... a creationist...
> 
> 'Kthxbye.


In reference to your remark and the quote in your signature, if we all have to go back to Tennessee and reopen the _Scopes_ case can we please have Mr. Bugs Bunny as the judge? It'd be the only way I could look forward to the proceeding.

Cordially,
A.Q.


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## Frank aka The Minotaur (Nov 12, 2004)

Howard said:


> So,why don't most states approve of gay marriage?


Gay marriage goes against what people believe is an inviolable tradition of one man and one woman. However, what people fail to realize is that over the milennia the conditions, traditions and definition of marriage has changed repeatedly. From girls being married off at prepubescent ages to paying for a bride (the dowry) because she is property to women not even being able to have their own credit up until the 1960s.

I believe most of it has to do with religious beliefs and the propagating of beliefs. No one is born having any beliefs or preconceived notions. In the former Soviet republics, while officially formerly atheist, the traditions of the Russian Orthodox Church run deep (the current Patriarch, Alexei II, is notoriously anti-gay). Yet, a predominately Roman Catholic Country like Spain has thumbed its nose at the Church and legalized gay marriage. Some societies throw off their old traditions easier than others.


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## Frank aka The Minotaur (Nov 12, 2004)

Quay said:


> In reference to your remark and the quote in your signature, if we all have to go back to Tennessee and reopen the _Scopes_ case can we please have Mr. Bugs Bunny as the judge? It'd be the only way I could look forward to the proceeding.
> 
> Cordially,
> A.Q.


I'll see what I can arrange.  It's got to be _at least_ as entertaining and unbelievable as the original. :icon_smile_big:


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## Quay (Mar 29, 2008)

Frank aka The Minotaur said:


> I'll see what I can arrange.  It's got to be _at least_ as entertaining and unbelievable as the original. :icon_smile_big:


You give me hope, sir, and that is a great thing. 

Cordially,
Adrian Quay


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## Howard (Dec 7, 2004)

ksinc said:


> Because in most states about 65-85% of the electorate doesn't support such recognition. In the broader country it's only 55% oppose same-sex marriage. California really skews the numbers, as usual.


What about Ellen DeGeneres and Portia DeRossi?


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## Quay (Mar 29, 2008)

*Interview with the Chief Justice*

For those still interested in the OP, there is an interview in todays' _Los Angeles Times_ with Chief Justice Ronald George, author of the decision. He's prohibited by law from speaking about the ruling in detail for 30 days after the decision but the interview does offer some good insights into the whole process & what all went on.

https://www.latimes.com/news/local/la-me-gay18-2008may18,0,4272300.story?page=1

Cordially,
A.Q.


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## Relayer (Nov 9, 2005)

That should put an end to the inference by some in this thread that since George was appointed by a Republican, is a Republican, he therefore represents a conservative judicial point of view.


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## ksinc (May 30, 2005)

Relayer said:


> That should put an end to the inference by some in this thread that since George was appointed by a Republican, is a Republican, he therefore represents a conservative judicial point of view.


Yep. That was a sad read.

Reminds me of watching Bobby Bowden try to explain why they can't even manage the clock; much less put an offense together. Still a great man and once a great coach, but what sad drivel that we all know he wouldn't have tolerated for 2.5 seconds back-in-the-day from an assistant.


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## Quay (Mar 29, 2008)

Everyone sees what they wish to see. How could it be otherwise? 

I see that upholding the rights of individuals to exercise their free will and thus choice in highly personal matters of matrimony against the power of the state to be an essential, inviolate conservative principle. Enacting sweeping legislative bans on what individuals may or may not do is a classic statist prescription. Interesting that folks who believe in such things as unregulated free markets until death are willing to embrace and enable government interference and regulation in other people's lives, especially at so fundamental a level. 

Then again as was well noted, "logical consistency" is another one of those great myths that bring general comfort on the surface but don't work so well when applied to specific instances where it seems principles are abandoned in favor of irrational fears. 

I miss Barry Goldwater.

Cordially,
A.Q.


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## PedanticTurkey (Jan 26, 2008)

If you want a libertarian argument against gay "marriage," it's a pretty easy one to make, as government recognition of such "marriages" imposes many duties on private individuals thanks to government regulation of so much of our lives.

Ain't socialism great?


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## ksinc (May 30, 2005)

Quay said:


> Everyone sees what they wish to see. How could it be otherwise?
> 
> I see that upholding the rights of individuals to exercise their free will and thus choice in highly personal matters of matrimony against the power of the state to be an essential, inviolate conservative principle. Enacting sweeping legislative bans on what individuals may or may not do is a classic statist prescription. *Interesting that folks who believe in such things as unregulated free markets until death are willing to embrace and enable government interference and regulation in other people's lives, especially at so fundamental a level. *
> 
> ...


Well now, isn't that rather rude?


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## PedanticTurkey (Jan 26, 2008)

This ruling is about _forcing_ the people to recognize homosexual pairings as "marriage," against their will. Nothing libertarian about it.

It's got nothing at all to do with freedom, unless you consider "the freedom to force other people to do something they don't want to do" to be some kind of liberty.


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## Quay (Mar 29, 2008)

ksinc said:


> Well now, isn't that rather rude?


I've no idea what you're talking about.

Cordially,
Adrian Quay


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## Wayfarer (Mar 19, 2006)

Quay said:


> Everyone sees what they wish to see. How could it be otherwise?
> 
> I see that upholding the rights of individuals to exercise their free will and thus choice in highly personal matters of matrimony against the power of the state to be an essential, inviolate conservative principle. Enacting sweeping legislative bans on what individuals may or may not do is a classic statist prescription.* Interesting that folks who believe in such things as unregulated free markets until death are willing to embrace and enable government interference and regulation in other people's lives, especially at so fundamental a level. *
> 
> ...


I am a free market type of guy and also a guy with a long history of supporting civil unions and that the government should stay out of the bedroom (and OB/GYN office for that matter).

I guess I'm a great myth?


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## PedanticTurkey (Jan 26, 2008)

Indeed. The government has no business "securing" the "right" of the people to "life."

How the hell would anyone get such a crazy notion?


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## Quay (Mar 29, 2008)

Wayfarer said:


> I am a free market type of guy and also a guy with a long history of supporting civil unions and that the government should stay out of the bedroom (and OB/GYN office for that matter).
> 
> I guess I'm a great myth?


"Great?" You do yourself an injustice. Magnificent is more the word. You're obviously a man of great character, solid substance and elegant views.

Cordially,
A. Quay


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## Wayfarer (Mar 19, 2006)

Quay said:


> "Great?" You do yourself an injustice. Magnificent is more the word. You're obviously a man of great character, solid substance and elegant views.
> 
> Cordially,
> A. Quay


Finally, a poster with insight and discernment! You sir are a credit to your profession, parents, and country.

Cheers


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## Quay (Mar 29, 2008)

Wayfarer said:


> Finally, a poster with insight and discernment! You sir are a credit to your profession, parents, and country.
> 
> Cheers


You're too kind. :icon_smile: I simply have a flair for the obvious. But kind thanks all the same.

Cordially,
A.Q.


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## ksinc (May 30, 2005)

Wayfarer said:


> I am a free market type of guy and also a guy with a long history of supporting civil unions and that the government should stay out of the bedroom (and OB/GYN office for that matter).
> 
> I guess I'm a great myth?


Wayfarer, I didn't think that you believed in "unregulated free markets until death." I'm shocked to find out you are one of those "folks." Just when you think you know someone ... :icon_smile_wink:


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## Wayfarer (Mar 19, 2006)

ksinc said:


> Wayfarer, I didn't think that you believed in "unregulated free markets until death." I'm shocked to find out you are one of those "folks." Just when you think you know someone ... :icon_smile_wink:


Not until death. It's why I rephrased it to fit me. I'm free market as a default position, but I can sometimes be changes off that position. Like how I see public education as having so many positive externalities within the paradigm of a representative democracy, that I think it should exist. Free markets until death would probably not stand for that.


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