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Craig Walenta
01:53 AM on 02/08/2012
"Yet Smith's reliance on a 1970s case to buttress his analysis is grasping at straws (although probably unsurprising from a judge appointed by a president who believed that Harriet Miers was the more qualified to sit on the Supreme Court than Samuel Alito)."

In theory, the conservative justices shouldn't feel constrained by the precedent set by Roe v Wade then? The MN case was really just the Supreme Court denying cert, but the Eighth Circuit, in a much more recent opinion has also ruled that state bans on same sex unions pass constitutional muster.
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Thaag Tidestalker
Axial Tilt: the Reason for the Season!
06:31 AM on 02/08/2012
Abortion has not been made explicitly illegal so RvW's precedent still stands. Sodomy is no longer a legally enforceable crime, so it's a non-issue in the dissent.
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pauliji
06:44 AM on 02/08/2012
That is actually not true. The 8th circuit court, in that case, Citizens for Equal Protection v. Bruning, was ruling on whether the state constitutional ban was an unconstitutional bill of attainder. In other words, did it constitute punishment without trial. It was a ridiculous position which the plaintiffs attempted to maintain, I don't know why they chose it. In addition, the 8th circuit supported their decision using the same tired old reasoning involving gay parenting being bad, and opposite gender parents being better. It's clearly not a reasoning supported by the evidence today, as both of those arguments were tried in this Prop. 8 case, and failed miserably.
In the 8th circuit, the plaintiffs also argued from the 1st amendment, which is about freedom of association. Again, not a very plausible argument, and totally at odds with the case being argued before this 9th circuit court.
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Wrongway62
Good night Mrs Calabash wherever you are
01:29 AM on 02/08/2012
Judge N. Randy Smith, wasn't he a contestant on the Gong Show. He seem like the type who would fit in with that crowd, maybe I thinking of someone with more sense.
wilsoncombatgrl
Ignorance is curable, but stupidity is forever!
01:11 AM on 02/08/2012
Judge N. Randy Smith's dissent is weak and holds a mirror up to the ugliness and bigotry that is prevalent in so many people in power. His ties to the religious right has tainted this dissent and the lack of objectivity is shameful and unprofessional. Sometimes the law has nothing to do with justice.
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WheelsOnFire
Equality Crusader
12:58 AM on 02/08/2012
The arguments against gay marriage are feeble, futile, and a proven failure.

Let's look at one in particular.

"Proceeding with caution before changing the definition of marriage."

First, this country has changed the definition of marriage in the past -- with no adverse consequences (see "Loving v Virginia" -- Supreme Court of the United States 1967).

Second, allowing same-sex couples the right to wed is not some novel concept anymore. The Netherlands has had gay marriage for more than a decade, Belgium for nearly as long, and Canada and Massachusetts for more than 7 years.

What is their real world experience? It's largely been a non-event.

Though, to be perfectly honest, I must disclose one effect on hetero marriage that both The Netherlands and Massachusetts did find. The divorce rate fell following legalization of gay marriage. Cause-and-effect? Who knows. But beneficial lightning struck hetero marriage twice.

Too bad the anti-gay-marriage crowd are so naive. They could have simply called The Netherlands or Belgium and asked about their experience. They really need to join the rest of us in the real world.

Then again, maybe they're more of those Brock University test subjects, displaying the homophobes' lack of intelligence and poor abstract-reasoning skills.
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Vikingdave
Treat friend like it's your last time together.
02:37 AM on 02/08/2012
Wheels:
My favorite still remains the argument DOMA that the bigots like to use. Mainly, that if poeple of the same sex are allowed to marry, it will somehow lessen the validity of Man/women marriages.
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Thaag Tidestalker
Axial Tilt: the Reason for the Season!
06:36 AM on 02/08/2012
Oh it's nothing but having to admit that LGBT people are, in fact, human and deserving of human rights. It's a byproduct of cis/het privilege. Let me repost my favorite quote about privilege (this was regarding male het privilege but the idea is still the same):

"And if there is any doubt why such an opinion might be met with hostility, it has to do with privilege. You can write it off as “political correctness” if you wish, but the truth is that privilege always lies with the majority. They’re so used to being catered to that they see the lack of catering as an imbalance. They don’t see anything wrong with having things set up to suit them, what’s everyone’s fuss all about? That’s the way it should be, any everyone else should be used to not getting what they want." --David Gaider of Bioware.
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WheelsOnFire
Equality Crusader
09:35 PM on 02/08/2012
Excellent point, Vikingdave.

Yet when the anti-gay-marriage activists are asked to furnish proof of how the validity of their marriages would somehow be reduced if gay couples could marry, they suddenly become mute or run into the Witness Protection Program.

Fact is, gay couples have been marrying in 6 states in this country, and in one case for more than 7 years now. So, if there were any effect, they would have seen it by now.

It was the same with DADT -- our military would be left in tatters and there would be orgies in the showers if gays could serve openly. They've been serving openly for about 6 months now, and so far no word of the military's demise. And I guess some of the whiners are still waiting patiently for the shower orgies to commence.
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EuroRant1
ExPat - Living outside, Looking in
03:33 AM on 02/08/2012
Great points.
Speaking as someone that has lived and worked here in Belgium and Nederland for more than 20+ years you're correct on every aspect you touched on.

Back in the day, we had our share of "doomsday" preachers and educated-minds telling us and filling our hearts with fear with what was about to befall us should we allow same-sex marriage to pass. They warned us that this would be the demise of our society, our children would suffer, it would be the end of families, our morals would disintegrate before our very eyes, people would now want to marry animals, blah-blah-blah.

If you want my honest opinion - it's all sort of boring now. The homos are more interested in shopping for the right schools, buying family homes, the right neighbourhoods, planning family dinner parties and family vacations, potty-training dilemmas, soccer practices, buying braces for Susie, school pictures and emails with attached photos of their brood of brats and getting to hear about their every quaint little family exploit.

And today all those nay-sayers that were so big, bold and boisterous so many years ago are gone (perhaps into hiding). After 10 years of same-sex marriage, none of it has come to pass... nothing.

And to date there have been no human/dog marriages.
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WheelsOnFire
Equality Crusader
06:47 AM on 02/08/2012
Thank you so much for your terrific comments, EuroRant1!

I've spent quite a lot of time in Belgium and The Netherlands on business in the past decade or so, and saw firsthand how gay coupes are treated there. You're right -- it's boring. They're treated the same as hetero couples and there is no fuss, no bother, no anything. I still recall fondly an end-of-summer festival in Amsterdam a few years ago. As the event ended, couples gay and straight alike began departing, many hand-in-hand. One very attractive young gay couple was stopped by several straight couples they apparently knew, for they paused for a few moments each time to exchange pleasantries. No one gave their sexuality a second notice, not even when in an affectionate moment one of the partners gave the other a playful hug and a quick kiss behind the ear. It was so natural, so nice to see. And no one cared in the least.

That's where we need to be. Thanks again for sharing your firsthand experience in societies that actually practice the freedom and equality the US boasts about but fails to deliver.
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Bren55
Happy Liberal
08:47 AM on 02/08/2012
Fanned and Faved. Great post.
12:21 AM on 02/08/2012
Graduate of BYU supports the Mormon-funded anti-gay proposition? What are the odds?
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Franklin Robinson
vi veri veniversum vivus vici
01:36 AM on 02/08/2012
apparently way better than my odd in vegas
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Al91206
Educating the right on why they are wrong.
03:11 AM on 02/08/2012
Mormons think of gays the same way Christian evangelicals think of Mormons.

Get it Mormons?
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Junius Gallio
We are the little folk, we.
12:11 AM on 02/08/2012
Question for Professor Groshoff, or anyone who wishes to answer.

Is a dissenting judge required to write a dissenting opinion, or can he vote against the majority and let that stand?
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bolivare
IT'S SO FLUFFY!!
06:46 AM on 02/08/2012
Why not research that question yourself instead of relying on others? That way, you would find out for yourself instead of relying on others "opinions".
That is what separates the "thinkers" from the sheep.
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Mickey Bitsko
Your sink is shipping
12:08 AM on 02/08/2012
Prop 8, if some may recall, was dreamed up by zealots to take away a right that was already in existence.

I believe that misinformation was the key in Prop 8 narrow success in 2008. I do hope the SCOTUS, if they decide to take this case in a year or so, will have honesty and insight to the background of Prop 8, but even more so, by the time the case is calendared, two or three Konserv cloaks will be retired from the bench.
02:39 PM on 02/08/2012
Unless someone dies on the bench a la Rehnquist, we will likely not see any of the five conservatives departing once Obama is reelected.

It's rare for a justice to die in office. They have great government health care, after all.
12:08 AM on 02/08/2012
the voice of the people has been silenced. no longer does your vote count. no longer shall your voices be heard. instead, the courts shall make your decsions for you. this is an outrage regardless of what side your on with this issue. I am sure if gays would have won the vote on prop 8 and the courts would have done what they did and rule that vote unconstitutional, their would be riots in the streets.
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Franklin Robinson
vi veri veniversum vivus vici
01:31 AM on 02/08/2012
Voices still count...however the founding fathers were wise enough to know that the population doesnt always have its best interest at heart...sometimes people foolishly vote to deny rights to people based on ideas that are less than logical...gay marriage...jim crow laws...slavery...etc
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RyanBurke
Devout follower of Zeus, the One True God.
01:33 AM on 02/08/2012
But remember, the majority wanted to keep slavery legal in the United States too at one point. Segregation, too.
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David N Taiwan
68 YO American in Taiwan
02:39 AM on 02/08/2012
...as well as women's right to vote...
...as well as interracial marriage.
05:58 AM on 02/08/2012
Dear Ryan,

The court is the ones that made slavery legal, the states pass amendment to make it illegal, just incase you care.
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Mickey Bitsko
Your sink is shipping
12:04 AM on 02/08/2012
Would you expect anything different from a W appointee.
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Bart DePalma
Bart DePalma
12:02 AM on 02/08/2012
The state has not only a rational, but a compelling reason to provide social recognition to marriage and not homosexual unions - the former provide scientifically proven health and economic benefits to the husband and wife and provide the best proven method of creating and raising civilized children, while the latter union does not. Whether these facts of life are an affront to the dignity of homosexuals is constitutionally irrelevant.

The vacuous Reinhardt opinion boils down to labeling irrational that which does not fit Reinhardt's personal policy preferences. Reinhardt's ill concealed contempt for the people of California's twice expressed policy preference to continue to define marriage as the union of a man and a woman is palpable. Indeed, Reinhardt appears to be outraged that the voters had the temerity to reverse the CA Supreme Court's invention of a right to same sex marriage. The voters may not take away what the courts have granted, harumphed the judge.

Is it any wonder those same people give Newt Gingrich standing ovations when he calls for the impeachment of judges like Reinhardt.
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cwebster
predominantly exasperated
01:51 AM on 02/08/2012
What a load of bull.

Do you actually believe the nonsense you posted?

The State has a compelling reason to provide social recognition of marriage between two consenting adults...gender is irrelevant. Stable relationships benefit society as a whole. Procreation is not a requirement for marriage, as you seem to think.

Btw, anyone giving Gingrich a standing ovation should have their head examined.
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Bart DePalma
Bart DePalma
08:10 AM on 02/08/2012
Your argument is one that the people of CA considered and rejected twice. The only issue here for the courts is whether the People had any rational reason for their decisions and they plainly do.
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bielymedved
Primum non nocere
02:01 AM on 02/08/2012
What are you drinking? The positive health effects of hetero marriage are UNAFFECTED by SSM and Walker could not get even the attempt by prop 8 backers to prove otherwise. As to creating children, show me the study on that, but "best" is no justification for "only allowed by law" . As to raising the children, well sorry, but that is just not the case:

http://www.google.com/search?client=safari&rls=en&q=same+sex+couples+raising+children+statistics&ie=UTF-8&oe=UTF-8

Voters don't, and never have had, the right to vote to deny or disparage the rights of the citizens of this country. So go harumph yourself.
06:07 AM on 02/08/2012
Dear Biely,

You have not constitutitonal right to marriage, it is state issue. Sorry but you are very much incorrect, the states have power to do as they plesae for anything not spelled out in the constitution, read the 10th.
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Bart DePalma
Bart DePalma
08:16 AM on 02/08/2012
I personally do not believe government should be defining marriage at all. However, for the purposes of the Constitution, it only needs a rational reason for arriving at its definition and it plainly does. The fact that you and Judge Reinhardt disagree with the people of California is irrelevant.
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marignymitch
E pluribus unum percent
12:00 AM on 02/08/2012
Thanks, Mr Groshoff. Smith's dissent may be vacuous but it is key to the upcoming rejection by four or five Supreme Court justices, I'll wager.
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Awake-and-Sing
Named after a great play by Clifford Odets
01:03 PM on 02/08/2012
The District Court ruling by Judge Walker and the Appeals Court ruling was based primarily on Judge Kennedy's legal arguments.

Any conservative holding hopes that Kennedy will vote against his own prior rulings shouldn't hold his breath too.

In any event, there is doubt the Supreme Court will even agree to hear this particular case as it applies only to California and they only hear 1% of the cases appealed to it.
11:10 PM on 02/07/2012
Marriage has nothing to do with procreation. Everyone knows that's alcohol's purpose.
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Awake-and-Sing
Named after a great play by Clifford Odets
01:03 PM on 02/08/2012
Great joke. LoL.
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09:58 PM on 02/07/2012
Excellent analysis! Demolishes the judicial activism perpetrated by N. Randy Smith.
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Sweendoggedly
Science. It works.
09:24 PM on 02/07/2012
Thanks for clarifying the dissent opinion a bit. I read through it, and was equally bemused by it's lack of logical coherence. It really read to me as though he were dissenting just to dissent.
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MNJim
Gort Baringa
11:56 PM on 02/07/2012
Yes, almost a perfunctory dissent: "OK---I'm the token conservative here and it is expected that i write a dissent. Here's some stuff I came up with."
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WheelsOnFire
Equality Crusader
01:55 AM on 02/08/2012
Well, to be fair, the dissenting opinion was running on empty after the laughably lame case that was put before the court by the Prop 8 supporters. It was sort of like defending smallpox.