He Said “Oral Argument”, Heh-Heh

You know how sometimes we get a ride home from school, and there's all those dudes crammed together in the backseat?

Oh shit, we got completely caught up chasing stories about our old student newspaper yesterday, and completely forgot to chase stories about our old favorite scourge, who made his reputation introducing a generation of American children to the mystery and wonder of Presidential splooge.

Yes, Ken Starr is back on stage, and once again he’s arguing against people who get more in a week than he does in a year. He’s out to prevent subverting the will of 52 percent of voters, we’re told, usually by folks quite busy trying to subvert the will of 52 percent of voters themselves.

And while this legal argument won’t rest on epistemological discussions of “is”, it comes close: Whether Prop 8 was a “revision”, an “amendment”, or a “violation of fundamental human rights cynically orchestrated by former institutional polygamists to divert attention from their ridiculous undergarments”.

We’ll be sleeping in as usual, but California readers can catch the action live on cable from 9 a.m. to noon Pacific, while the rest of you can fight for video streams online. And please — please — refrain from remarks about “Ken Starr’s briefs” until at least the fifth comment.

California Supreme Court may reveal stance on Prop. 8 on Thursday [LAT]

Streaming video coverage [California Channel]

252 Comments

Speaking of mormoni and copying/pasting from original post to a more suitable one.

There’s a lot going on in those magic underpants.
http://www.advocate.com/news_detail_ektid74249.asp

Utah’s the NUMBER 1 per Capita users of pr0n.

@ManchuCandidate: Indeed. And the exmos at exmormon.org are having a field day with that study.

Taking a mental health day — conveniently the roof or built-in-the-wall air conditioner has sprung a leak, and I don’t think Jr is capable of opening the door to let the repair person in (heh). So I’ll be staying home waiting for the repair person and watching the oral arguments. Things got so bad at my job yesterday that I imagined myself telling certain people in the war room exactly what I thought about them. Luckily I saw my shrink last night, and I am back on a mood stabilizer. Bye-bye hypomanic days; I will miss you.

Anyway, yeah. Starr is gonna get spanked!

@JNOV: Which one are you on now? Hypomania can be a blessing and a curse.

Legal beagles: can you tell me if Prop 8 is overturned, would the fundies go beyond a recall of the justices and try to amend the offending parts of the California constitution upon which the justices might base their decision? This seems like a never ending war.

FIFTH COMMENT: I wonder what gets out Hershey’s stains.

@rptrcub: Doubt it – I don’t know what it takes to amend CA constitution, but the provisions they’d have to change would almost certainly wipe out whole categories of civil rights. Only the fundies would be stupid enough to vote for that …

@blogenfreude: … never underestimate the power of stupid people in large numbers.

@blogenfreude:

In support of rptrcub comment.

I give you examples:
Prop 13
Kaliphonya Total Recall Election

Breaking News: “Peter Tork, former member of the hugely popular 60’s pop group The Monkees and current bandleader of blues-rock band Shoe Suede Blues announced Tuesday that he has recently been diagnosed with a rare form of cancer, Adenoid Cystic Carcinoma. This uncommon and generally slow-growing form of head and neck cancer is most frequently found in the salivary glands but in his case was discovered on the lower region of the tongue.”

And Limbaugh and Rove and Yoo walk the earth, while Peter Tork is stricken; there is no justice.

@rptrcub: The Gold Standard: Lithium! I’m pretty pooped today, but I don’t seem to be getting dumb yet. That’s the part I hate the most.

@Prommie: Aw, man. I love Peter! The Monkees, not so much.

w/r/t Yoo: Someone on a site I visit recently posted, “Franz Schlegelberger is about to experience a period of historical relevance.”

@ManchuCandidate: Prop 13 is the equivalent of bending over the economy and banging it for 30 years, and then never calling it back.

It’s like Zimbabwe, except better, kindove.

@rptrcub: Kinda depends on which way the Supremes go, assuming they vote to overturn. I think an impeachment campaign is very likely if that happens. It worked before, when the Cal business interests got unhappy with Rose Bird.

@Dodgerblue: Would impeachment actually work? Who would do the impeaching — the assembly? And if they acquitted, would the fucktards try to recall the entire assembly? I know I’m going off on a tangent, but I’d like to know how far they could go through the legal process before calling in the Adkisson Brigades to start bombing the Castro.

JNOV: Yet another totally legit reason to hate the living crap out of Berkeley.

(And no, I’m not bitter that Stanford (the men, anyway), barring a miracle run in the Pac-10 tourney, is going to have a sad on Selection Sunday. Not bitter at all.)

@rptrcub: @Dodgerblue:

Impeachment for deciding a certain issue in a court of law? How is that even possible? Even if they did it, wouldn’t it set a terrible precedent?

There is so much about the law I don’t understand.

ARGH! Can’t get on calchannel — is anyone live blogging the oral arguments? Is it on CSPAN or some such?

@With a name like Tommmcatt…it has to be good: I think the key, vital understanding about law is that it’s whatever a lawyer says it is, until another/better lawyer convinces the judge otherwise. I’m not sure this is literally true, but there seems to be so much “interpreting” that goes on that judges have huge leeway in a lot of cases, and once they decide something, it can be cited as a correct interpretation of what the law really means.

In other words, the law don’t mean shit until someone says what it means. In yet other words, “anything goes.”

@With a name like Tommmcatt…it has to be good: It’s already happened in Cal. A former Chief Justice named Rose Bird, along with two associate justices, were impeached by a vote of the “people” in the late 80’s in a viciously misleading campaign funded by the business interests.

@IanJ: Sort of. Appellate courts look at a lot of stuff when interpreting laws. Some laws are written with extreme detail and specificity, and some laws are written broadly. The court looks at legislative intent, past decisions of the court (stare decisis AKA precedent) and the briefs and oral arguments of the folks standing before them.

Cal Supremes are now taking argument on the wonkish amendment vs. revision issue.

@IanJ:

Yeesh. And here I thought it was something to be depended on.

BTW, when you talk all smart like that you make my heart go pitter-pat, you hot piece of straight-boy scholar, you.

@JNOV: And then you’ve got to consider whether the judges were elected or have lifetime appointments. That factors into their decisions as do their political persuasions.

@JNOV: right. they are elected in Cal, and have to stand for re-election every few years. federal judges have life tenure and can only be impeached by the US Senate.

@JNOV: De nada. Looks like the revision/amendment argument is not getting much traction.

@Dodgerblue: MOTHERFUCKER! They are trying to make me buy a flipmac plug in in order to hear the arguments!

@JNOV: At least you’re not hearing Justice Kennard ramble on. I didn’t need any plug-in or anything — the audio stream just started up.

No, a PC. We have a DSL line here at work.

Who is arguing for teh gheys? And who’s sitting on the bench?

Bizarre. Fucktard Rush is challenging Obama to a debate. Obama should challenge him to a belly bucking contest on the mall and launch the drug addled pederast onto the roof of Union Station.

http://www.nydailynews.com/news/politics/2009/03/05/2009-03-05_rush_limbaugh_challenges_president_obama-2.html

@JNOV: here’s a link: http://www.courtinfo.ca.gov/courts/supreme/highprofile/prop8.htm.

the argument is in 3 sections: amendment vs. revision, equal protection, what to do about the gay marriages that have already occurred if Prop 8 is upheld.

FlyingChainSaw: In related news, a RNC committeewoman is not down with Michael Steele. Got all up in his face, yo —

In an e-mail to fellow RNC members obtained by The Hill, Dr. Ada Fisher, North Carolina’s national committeewoman, said Steele is “eroding confidence” in the GOP and that members of his transition team should encourage him to step aside. Fisher added Steele’s personal e-mail address to the e-mail.

I don’t want to hear anymore [sic] language trying to be cool about the bling in the stimulus package or appealing to D.L. Hughley and blacks in a way that isn’t going to win us any votes and makes us frankly appear to many blacks as quite foolish,” Fisher wrote.

Oh, snap. Run that, Steele.

Who is the female justice with the accent?

@JNOV: Joyce Kennard. Born in the Dutch East Indies, was interned in a concentration camp by the Japanese during WWII. She wrote the opinion in the death penalty case I argued (and lost) in the Cal Supremes.

Who is the guy speaking right now? I want to marry him.

@JNOV: People v. Wader, 5 Cal.4th 610 (1993). Mr. Wader died in prison while we were pursuing a federal habeas claim.

JNOV, try the Sacramento Bee website – I’m watching it on California Channel online, but it says to try sacbee.com if you can’t get it.

Went by the courthouse today. Humongo crowd outside in the Civic Center plaza outside the courts and the City Hall. Huge rally and march last night in the Castro. There are some pissed off queens. Don’t blame ’em.

Therese Stewart!!! Yes!!! She is my shero…

@rptrcub: Those little Tide To Go pens work pretty well. Before that, I used dishwashing liquid.

@Prommie: Oh bummer! I was just watching him last night on a Bio channel biography of the Monkees. Even though I was a Mike girl, I always thought Peter was the cutest.

@chicago bureau: Fellow RNC committeemen, have you taken leave of your good senses? Can’t you see that man is a ni

What does “is” mean? “Current state of affairs…” Who is THAT GUY? I love him!

Mawwige, is what bwings us together tooday…

@JNOV: I think that was Justice Baxter. Not sure. The old white men all look alike to me.

Someone tell me about Michael Morrocco (sp?), please.

@Dodgerblue: Deputy City Attorney for the City and County of San Francisco.

ADD: She’s on the cover of this month’s California Lawyer

Oh, shit — Kennard is showing her hand…

@SanFranLefty: Aw, Jeez! He’s cronies with Gloria Allred? Boourns!

@JNOV: State Attorney General’s office.

@SanFranLefty: Yeah, just figured it out — under Gerry (sp?) Brown, right?

@chicago bureau: Steele is getting served by his homiez.

Oh, the poor Krueger guy is really, really nervous.

Californians have a constitutional right to fish? This is a fun state.

@JNOV: Somebody did not study for his finals.

Is Justice Kennard going to let anyone else speak?

Finally Krueger swings back at Kennard.

Wow, I’m totally lost. (BTW, JNOV, I was deliberately completely oversimplifying about how laws are interpreted, but I appreciate your clarification.)

What’s actually happening? I spent the last half hour pedalling through heavy rain mixed with hail, and distinctly far from any ability to listen to the law-talking’ guys.

I mean, the justices are being very tender to him, and he’s still freaking out. He’s not even hitting the softballs from his supporters.

@IanJ: I just tuned in 10 or 15 minutes ago. A Prop 8 opponent is being questioned by the judges, and completely fumbling his responses. Questions being put to him suggest that the initiative right is very strong, and overturning that right in this case has to meet a very high standard.

Krueger is not even capable of following up on the penumbra argument a justice just gift wrapped for him. ARGH! AND I’M NOT A LITIGATOR!

FUCKING A I AM GETTING A HEADACHE!

If he says, “You know” ONE MORE TIME, I’m flying out there and beating him.

Oh, his time is up! There is a God!

I don’t know which justice is which — who’s slanting which way — but the questions are very intelligent. Although I did hear “living constitution” slip into the conversation, which must be a red flag.

And now the douchstatic Starr…

Ken Starr. FUCKER FUCKER FUCKER FUCKER

I have to turn it off. I can’t listen to him for an hour.

And here’s Ken Starr, blowing smoke from the getgo.

BUT THERE IS A HIERARCHY OF RIGHTS, FUNDAMENTAL, INALIENABLE OR NOT!

That idiot was our deputy attorney general? Furlough the bastard.

Starr: It’s okay to take away fundamental human rights. Heck, we’ve done it before.

Revolution? Fucker. Rs are always calling “liberal” rulings the work of activist courts, but decisions that favor business are never considered the work of activists when ALL decisions that go against precedent are the work of activists.

Watch for standard Republican code words…

Starr: Citizens are perfectly within their rights to enact horrific laws through their government. He’s basically saying Prop 8 is equivalent to the worst laws on the books, now or historically. But that’s okay.

@nojo: It’s a mistake to underestimate this guy.

@IanJ: But the ability to brag about cycling through said rain/hail/etc. offsets the pain and suffering, right?

Starr says the people have a right to be stoopid, dammit!

Starr: All of our rights are subject to the whim of plebiscite.

@Dodgerblue: Trust me, I’m not underestimating him. And the justices are picking up on the same angle: tyranny of the majority.

@nojo: Oh Jesus, he’s quoting Justice Mosk, one of our greatest state court justices — who would have been appalled by the equal protection issues here.

And now we’re pulling dicta out of our asses!

@nojo: Y’know, the Stooopids could amend the Cal constitution to say that Blacks can’t vote. That would be the end of the issue under state law, but not under federal, where it would be struck down in 10 seconds. The prob for the petitioners here (anti-8 team) is that the feds have almost never extended the equal protection clause to gays.

@JNOV: He’s good on his feet. So to speak.

@Dodgerblue: Exactly — teh gheyz are not a member of a federally-recognized suspect class.

@Dodgerblue: Heh. And he’s sliver tongued. And fork tongued. A little too emphatic.

@JNOV: that’s because gayhood is a lifestyle choice. Right?

@flippin eck: Pain and suffering? Nah, the thought of actually tuning into this kind of legalistic drivel sounds utterly brain-killing. There’s a very good reason I didn’t go into law.

STARE DECISIS! STARE DECISIS!

But isn’t part of this case a case of first impression?

@Dodgerblue: It’s not considered an immutable characteristic by SCOTUS or Congress.

“Each of us is a minority of one”? In that case, I need to get on that affirmative action scholarship for my full ride to grad school in light of my minority status as the one and only Flippin-Eck-American.

@Dodgerblue: D’oh! I missed the sarcastique. Sorry. Headache. Angry.

@Dodgerblue: Or, to get to the meat of it, Starr’s argument suggests that California voters could strip away the right of anyone to marry or have children.

In other words: Our rights — all of our rights — are contingent.

Wow, talk about inside baseball. Stare whatsis? Plebicite? Bottom line it: Are we losing?

RIGHTS ARE NOT ULTIMATELY DEFINED BY THE PEOPLE!

@nojo: Yep. He just said that. Rights are defined by the people.

@Put a Tommmcatt in your tank!: I’d say bad guys are ahead on points with just a couple of rounds to go.

JNOV: But Lawrence v. Texas took care of using rationally-related (as in Bowers v. Hardwick, which is (a) one of the five worst decisions of all time but, nevertheless, (b) the best case name EVER).

But anyways. I’m kind of meh on this oral argument. I mean, suppose teh gheys win, which on the purest merits of it they should. This unleashes yet another proposition drive and — perhaps worse yet — a recall petition on those who voted to overturn (as in “how dare they protect the rights of people etc. etc.”). Two years from now, we are probably right back where we started. And if the Mormons win that one, then the issue is probably settled, in the minds of many, for a generation. Which would be bad.

My optimum solution here is to have Prop 8 reversed at the ballot box by a campaign that doesn’t totally blow, next time around. (Of course, my real optimum solution would be to have state legislatures (not just in California, but elsewhere) grow a pair and tell the fundies “no,” and get rid of initiatives altogether, so as to leave law-writing to people who are not complete idiots. Potato, potahto.)

@Dodgerblue: Yes. And no one is really taking Starr to task. No one is being confrontational, which bothers me.

@JNOV: Note that he’s not saying that gay people are bad, disgusting, anti-religious etc. But he’s saying that the voters can act on those prejudices and that’s OK.

flippin eck: Your people person have has been kept down by The Men and The Women Who Are Not You for too long.

@chicago bureau: IIRC Lawrence was a privacy case, not an equal protection case.

@chicago bureau: Kennard is asking him why can we (the court) do whatever the fuck we want? Softball!!

STAREDECISISSTAREDECISISSTARESDECISIS!!!

Quaint.

Ugh.

Laughable.

Ugh.

What Lola Wants, Lola Gets — isn’t that Starr’s argument that the people should get what they want?

@JNOV: Jesus. He’s quoting “Damn Yankees.”

@chicago bureau: Protect nothing, they’re trying to confer special rights upon the gays, which makes the straights feel bad, sort of like being picked last at dodgeball.

Dodgerblue: Because you are a third branch of government with the independent duty to evaluate claims and do justice generally.

Oh, wait — this is Ken Starr we are talking about here. Sorry. Never mind my rambling.

PIQUED YOUR INTEREST YOU DUMBASS BITCH!

Lookit, mellbell: I was picked last for dodgeball plenty of times. It fucking sucked. You minimize the damage this causes.

And thus gays should never be allowed to pair off, much less get hitched. Q.E.D.

@JNOV: Corrigan finally grows a pair and takes him on over the “swirl of uncertainty.”

@Put a Tommmcatt in your tank!: I don’t know whether we’re losing, if only because the odds were against us to begin with. If the decision is to rest on amendment/revision, it has to be made with an eye to the precedent it sets, and consequences that may follow.

On the other hand, if it rests on “inalienable right,” it’s on much more solid ground.

So, wait, Ken…are the people sophisticated enough to amend the state const. or not? Make up your fucking mind.

Yes, throw back The Flinty Reality into that SOB’s face!

@nojo: Once the courts start making up which rights are inalienable, watch out.

Swirl of Uncertainty: “The Poet makes himself a seer by a long, immense and systematic derangement of all the senses.”

And now he plays the polygamy card!

@JNOV: Plural marriages! He’s playing to the Moroni funding base!

@Dodgerblue: In which case we’re well and truly fucked, but that’s Democracy for ya. Or human society.

@JNOV: Jinx jink personal jinx!

@nojo: “Swirl of Uncertainty” was be a great name for a band.

JNOV: There are a subset of Californians who (a) voted for Prop 8 and (b) expressed shock that The Bachelor was scripted, and in fact rigged.

Book it for all time: any amendment to a state constitution that depends on a popular vote is suspect. We are barely able to elect people who are complete idiots, and sometimes we fail to perform even this simple duty. (I speak from experience, as an Illinoisan.) Changing our basic law on the say-so of an unruly mob? Pass.

@nojo: Well, you wouldn’t want the Supreme Court of the State of Pickfuckia to be able to just decide on their own what rights are fundamental and which are not. Like Black people voting, for ex.

Justice George, I was joking about “is.”

@JNOV: Except for the Stanford thing. I went to a simple state-funded school in Westwood.

Yay! Lang of Prop 8 intentionally ambiguous!

@JNOV: I’ve argued two cases in the Cal Supremes. She just will not STFU.

@Dodgerblue: But that’s the point: If not the Supreme Court, the Legislature? If not the Legislature, the voters? And if not the voters, the Supreme Court?

We’re all making up this game as we go.

@Dodgerblue: Has Justice Moreno been able to ask a question yet? Kennard will not shut up. I have to turn the volume down every time Starr opens his mouth because otherwise I will scream “FUCKER” on top of my lungs and scare my coworkers.

WTF is secondary retroactivity? ANd what is this Putative Spouse Doctrine?

@nojo: It’s a tough question. I would trust the Supreme Court of Stinque to make up the rules. But failing that . . . .

The US Supremes have decided that, for ex, the right to marriage, the right to procreate, the right to privacy are fundamental. You won’t find those spelled out in the US Constitution. Nor the right to abortion. Prob we all agree with those. But what if they decide hey, our bad, we make a little mistakey about this abortion thing . . .

@JNOV: Putative Spouse = Palimony?

As far as the Silver Tongue, I keep thinking he’s playing to the groundlings. I don’t hear the justices buying his “eloquence”; on the whole, I’m enjoying their questions.

@Dodgerblue: ANd that’s what pissed me off when the Dep AG missed the penumbra softball.

It blows my mind that the restoration of my status as a full citizen of the United States is resting on this tit-for-tat. There is no dignity in this.

@JNOV: No idea re secondary retroactivity. never head that before.

A putative spouse, in the hetero context, is where people treat each other as married, tell 3rd parties they are married, etc, but never got married. The putative spouse (always the woman, natch) may have the rights of a legal spouse as against the other party in the relationship. It doesn’t mean shit with respect to her rights against the government, people outside the relationship etc. Starr is being deliberately misleading by hinting that married gay couples could use this theory and everything will be OK.

@nojo: But they’re not really pushing him — they aren’t being nasty. That might just be their style at CA SCT, but SCOTUS will chew you up and spit you out if they disagree with you.

@Dodgerblue: I’ve always said that I fully agree with the doctrine of Philosopher King, as long as I’m the Philosopher.

But the Supremes can and have taken away fundamental rights, as a certain class of Californians well know from World War II. We can talk principle, even follow it in good faith, but in the end we’re stuck with ourselves.

@Put a Tommmcatt in your tank!: And nobody is really talking about what’s going on: hate.

@nojo: this is exactly my view of political science: “I’ve always said that I fully agree with the doctrine of Philosopher King, as long as I’m the Philosopher.”

@JNOV: Putative spouse is like common law marriage.

@Dodgerblue: Yeah, that sounded like the Common Law Marriage laws we had here in PA until about five years ago. It’s a head fake.

@JNOV: Dodger’s the expert on Cali Supreme decorum. I’m not going to attempt to read their judgments into their questions.

Who is this guy speaking now?

@JNOV: Shannon Minter, Legal Director of the National Center for Lesbian Rights.

@SanFranLefty: but doesn’t common law marriage give the spouses rights against 3rd parties? I don’t think the putative spouse rule does. It’s a distinction with a difference — think of the situation where a gay partner is in the hospital and the hospital admin won’t let the other partner visit or have a say in the care.

I did not know that CA recognized gays as members of a suspect class! Huzzah!

“Sexual orientation is a suspect classification”: I missed the first part of the show, but this sounds like a fundamental issue here.

WHY SHOULD SAME SEX COUPLES HAVE TO PUT FORTH A BALLOT INTIATIVE TO ENJOY RIGHTS THEY ARE DUE UNDER EP?

@nojo: Only in CA (and maybe some other states). If it were a federally recognized class, federal civil rights would come into play, and Prop 8 would be unconstitutional. And marriage is a fundamental right under federal civil rights law.

@Dodgerblue: I’m thinking exactly that. The reasoning seems to be that gays have all the rights of marriage, only we won’t call it that. But will that reasoning be followed in practice?

@JNOV: Because we hate and fear them. Get with the program.

@JNOV: Yep, that was the really significant part of the decision last year. They used strict scrutiny review.

@Dodgerblue: Yes, you’re right, and in the few states that still have common law marriage, there’s a certain amount of time that has to go by whereas putative spouse there’s no timeline. But Cali doesn’t have common law marriage, right? I memorized the states that did have it back when I took Family Law but can’t remember now.

Yes — bring up the kids, cuz one of the first classes of people who were federally protected were bastard kids — make the connection in the justices’ minds.

@JNOV: Exactly. That’s why this is playing out in state court, not fed.

JNOV: Because equal protection means what the people say it means. People can be trusted to protect the rights of people different from themselves. It’s in their nature, you know. Admit it: you must have missed the first day of law school.

Oh —

Putative Spouse Doctrine: proper noun — the legal concept holding that if a spouse ceases to perform rudimentary spousal tasks (e.g., taking out garbage, doing dishes, cleaning house, not being lazy good-for-nothing waste of space, etc.) that the spouse (usu. male) is not truly a spouse.

@SanFranLefty: My very dim recollection is that we do not. California inherited the Spanish law community property system of marriage, not the English common law in that respect.

@JNOV: I should say it would probably be unconstl b/c not all suspect classes are afforded the same level of protection (e.g. women are suspect-lite).

@JNOV: Because it’s a choice, because it makes baby Jesus cry.

@Put a Tommmcatt in your tank!: Agreed. This is the worst part of all.

@nojo: No. As LDS meddling in Illinois has told us, as well as showdowns with Buttars in Salt Lake City, their side really doesn’t want gay couples to have any recognition, whatsoever, which blows (hehehehe) a huge hole (teehee!) in the whole “we’re not against gays, we just want to preserve the definition of marriage.” They will not be satisfied until we’re all hitched to the opposite sex and miserable-r X1000.

Petitioners should have had Marako and Minter do all the arguing.

@Dodgerblue: But I think the anti-8 people need to sneak in code words from federal EP cases to trigger some sort of correlation in the justices’ minds, since they can’t cite fed cases.

@rptrcub: We know what they want, as opposed to what they’re arguing.

The practical problem, well-documented, is that you have to scream bloody hell to see your partner in the hospital, while the “married” husband down the hall can step right in.

Hey, has anybody said “separate but equal” yet?

rptrcub: Don’t kid yourself. Baby Jesus was all about the ladies.

@JNOV: Agreed, they are trying to do that.

@SanFranLefty: Cal does not recognize in-state common law marriages, but does recognize common law marriages from states where they are legal. Knight v. Superior Court, 128 Cal.App.4th 14 (2005).

@nojo: @JNOV: I think some folks on the No on 8 side are afraid to do so because of the hemming and hawwing about how the gay rights struggle is not the same as the civil rights struggle for African-Americans.

Good lord, I just caught a whiff of John Rawls.

nojo: Hey, has anybody said “separate but equal” yet?

I wouldn’t expect them to. The “gays only” drinking fountains are actually a well-kept secret. Drinking from them makes one fabulous.

Is this Minter again? I <3 her.

@nojo: This wins for Post O’the Day: “I just caught a whiff of John Rawls.”

@rptrcub: It’s the same damned thing to me.

rptrcub: hemming and hawwing about how the gay rights struggle is not the same as the civil rights struggle for African-Americans

You know what? If the black community doesn’t like the “separate but equal” argument in this case, then that’s just fucking tough. It’s the biggest weapon in this fight — it reduces the stakes down to an easily understandable term.

Framing the question decides the outcome. No news there.

@Dodgerblue: Yeah, but you and I might be the only two people who get it.

GO GO GO GO GO GO GO GO GO GO GO MINTER! SHOUT THAT BITCH DOWN!

I hate her voice, but I’m enjoying her argument.

Wait — not Minter but Stewart? Whoever. Go!

@JNOV: Yeah, that’s Stewart, the #2 in the City Attorney’s office.

196 comments? Good lord, don’t you people have work to do?

(sorry I am missing the fun)

@nojo: We’d get more votes for Lou Rawls. “They call it stormy Monday …”

@homofascist: No, because my edjamacational institution of higher larnin’ is on spring break and everyone but me is not on campus.

@homofascist: I’m multitasking, darling.
@Dodgerblue: Yeah, he’s an amazing person and a terrific attorney. This is a good profile of him.

@SanFranLefty: HUHFUCKINGZAH! And one of your classmates is a transgendered man as well. He co-founded this place: http://www.transgenderlawcenter.org/index.html

@rptrcub: You should have come to Chicago. It is like 65 degrees here today! Woo hoo! It does lift the mood.

Speaking of headaches: Inalienable, fundamental, and which is a subset of which. My pin doesn’t have room for that many angels.

3 solid hours of listening to Justice Kennard. OMFG.

@homofascist: DC is gunning for low- to mid-70s this weekend. Huzzah!

homofascist: March in Chicago is the biggest sucker bet in the World of Weather. Spring does not start until May.

But back to who’s winning: If they throw out the initiative, it’s gonna set a huge precedent, so they have to be very careful about the reasoning. Presumption has to rest with validity, so the odds are stacked against the good guys from the start. But we knew this one was a challenge going in, especially since it was only a 5-4 vote last time under more amenable circumstances.

@mellbell: And people try to deny that the climate is getting all whackafoo.

@nojo: My prediction is they will uphold the proposition with Kennard the key vote, but they will all (or almost all) say that Prop. 8 is not retroactive.

Which from a political level is the best solution to avoid the “tyranny of the judiciary” and a possible recall of the justices, but I do think it will set a horrible precedent of saying that fundamental rights can be changed at the ballot box.

Jr. did his best to follow the arguments, but I had to keep hushing him because I couldn’t pause the stream. He wants to know why the fallacy of separate but equal doesn’t apply to gay civil rights. And we’re black (and white and Am. Indian), but, you know.

@SanFranLefty: I agree. And with that, I am taking two Xanaxs and taking a nap because I am SOOOOOO upset and wound up. See you on the flip side.

@SanFranLefty:

You’re probs right. This is one of the many reasons that I have absolutely zero confidence in the US judicial system. I don’t see why anyone would.

@SanFranLefty: This is the outcome I expect, and I expect there to be more attempts to invalidate the marriages of those who got married during the brief window that gay marriage was legal.

@SanFranLefty: That’s what Kenny was arguing: All our rights are subject to the whim of a voting majority. I hope somebody teases that one out.

@nojo: That was something Bork said during his confirmation hearing, that there are no rights that are inherent, all rights are “granted” to the people by the government. That was back when I used to scream at the TV. I hated that bearded prick.

@nojo: Well, here’s the thing. The Founders were kind of wily — they feared mob rule because they were elitists, so that’s why they instituted our version of representative democracy with the separation of powers. SCOTUS really exists to protect the rights of minorities, and at the time, the recognized minorities were landed white men.

But the Bill of Rights were written pretty broadly, and over time more people were included in the groups of minorities who were preotected by the courts. Whether the Framers envisioned that one day women, blacks, etc would be protected minorities (federally) is a fun debate. Maybe they did; maybe they’re rolling in their graves. But the same arguments that were used to protect business owners started to be used to protect people. There was this huge strict constructionist vs (whatever the good guys were called) mess for a while, and out of it emerged this whole concept of a fundamental right to raise a family –> to use birth control –> to have an abortion –> to engage in sodomy (the legalistic term), etc, and all these rights come from the fundamental right to privacy which is not an enumerated right, but it can be inferred from the Bill of Rights which say you don’t have to house soldiers, you can hang out with anyone you want, the govt can’t go rifling through your stuff without cause, etc.

As an ethical and pragmatic issue, we tend to recognize certain rights because we don’t want people to come and abridge ours. But as a legal issue, rights are created not directly by the people but by the constitution, and the courts have the duty to interpret the const and laws. The courts exist to protect the minority, and Starr seems to have forgotten that.

The prop/initiative system is a mess. Anyone from any state with enough money can put any wackadoo prop on the ballot and change CA’s const, and the props are often written in such a misleading way that people really aren’t making informed decisions when they vote for or against them. And to put the onus on GLBT folks to go through the prop process to change the const to REGAIN their rights is ludicrous, an undue burden and bullshit. Fuck Justice Kennard for even bringing up that point.

Who knows where blacks would be without Justice Warren. I hope someone on the CA SCT has his reincarnated balls.

@JNOV: Gay marriage will happen in this entire country, assuming it’s not taken over by fascist hordes. The decision made by CA SCT determines whether the time frame will be 10 years or 50.

@Prommie:

I know, right? “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights…”

ADD: Or is that inalienable? I forget.

I know the Declaration is not a legal document per se but come on, how could you make an argument that is contrary to that principle on its face? Without that sentence, that concept, the United States is just another country, no better than any other.

@Prommie: Which brings us back to the point Dodger raised: Somebody has to call it, and pick yer poison whether that’s the Supreme Court, the Legislature, or the voters.

Contra Sully, I fundamentally dislike the notion that rights should be decided by popular vote, that gays should in effect ask everyone else for permission to marry. But rights don’t exist as a practical matter unless acknowledged and enforced, and everywhere you turn you face humans who may think otherwise, with the power to enact their judgments.

Once again: Whatever we do, we can’t avoid the problem that we’re stuck with each other.

@JNOV: SCOTUS really exists to protect the rights of minorities

Well, as of 1803, more or less. Call it the first example of SCOTUS finding an implicit right embedded in the Constitution, in this case for itself.

@nojo: I prefer to think of it like this: Those things we call “rights,” those are the issues we require a super-majority to mess with.

True democracies require consensus, not mere majority. But to change the Constitution, which can always be done, and if done, could obliterate any of our “rights” or create new ones, we actually do come close to requiring consensus.

@Put a Tommmcatt in your tank!: Yeah, but read further and Jefferson blames King George for the African slave trade and its effects on the colonies, yet we kept the slave trade going fast and furious after the war, and of course Jefferson and others owned slaves. And slept with/raped them! Huzzah.

The Declaration of Independence is poetic and batshit. It’s just a temper tantrum. And the Revolutionary War wasn’t even a true revolution. Rich white dudes in the colonies just got tired of dealing with Great Britain and wanted to run things on their own. Life for your average Joe didn’t change much after the war was won.

And for all of you Frog haters out there, had it not been for the French, we’d be singing God Save the Queen.

@JNOV: Hence why there should be more statues of the Marquis de Lafayette EVERYWHERE.

@nojo: By the way, the thing to watch out for are Constitutional Conventions, once you convene a Constitutional Convention, it only requires a majority vote to draft a new constitution, as opposed to amending an existing one.

Reading this at lunch is so much better than having to listen live.
Question for the CA lawyers: Do your Supremes seem to rely more heavily or oral argument or on the briefs when making their decisions?

@Prommie: True federally, but the California constitution is more like a binder stuffed with post-it notes.

@nojo: Haha! Like a binder stuffed with notes scribbled on pieces of toilet paper.

@rptrcub: Indeed! I’d love to see every single fucking Columbus statue replaced by his.

@Dodgerblue: Don’t your judges act judicial? There have been references here to judges telegraphing their vote. Man, judges here, never. They so hide it, its amazing. I have had to sit through 5 minutes of the decision before I could figure out that I won, sometimes. Forget about figuring it out from the argument.

Its a tradition here, those whom the judge is going to destroy, they will first praise.

@nojo: Yup. Brilliant move on Marshall’s part. Before that you couldn’t PAY someone enough to be on the Ct, esp with all that riding circuit nonsense. But yet and still, back in the Marbury days, the Ct was still helping out business interests and screwing the little people. It wasn’t until the turn of the 20th cent that things really started to change.

@Prommie: Speaking as a civilian, you could certainly detect some softballs being thrown, and when “living constitution” was mentioned you knew there was something going down, but on the whole I enjoyed the questioning. Kenny’s obsequiousness didn’t seem to be a factor.

Greetings, all! As before noted, these states arguments are meaningless without federal laws backing them up. As before noted, the OH and I are legally married in NY state and it means bupkus. (T/J resident flock of wild turkeys are parading outside my study window) It makes everybody feel good – on both sides – but however it comes out I don’t think it makes a jot of difference. Perhaps if you have children though I’m not sure how. It needs to be federal and that’s not going to happen. As before noted, not in my lifetime.

We have, for the time being, become the group the larger society chooses to attack to define its own identity. We are what they are not. Therefor they must stand us against a wall and throw stones at us so they won’t become like us. Again, personally, I am beginning to not give a shit. Perhaps we’ll do better on the outside.

@nojo: What I have found judges to do is beat the shit out of the guy who is going to win, and throw softballs at the guy who is going to lose. I believe its a conscious effort to make sure that the litigants feel that their arguments were listened to and given due consideration.

Wait, I thought we were designated a suspect class. Wouldn’t this Proposition usurp the powers of the California Supreme court by effectively removing that designation? Isn’t it unconstitutional in that regard?

@Benedick: You are so right, fuck them, anyway.

Oh, shit, I am one of them. Well, not really, the difference, I guess, is I do not define myself by my difference from you.

@Prommie:

Prom, I know I speak for all of us homos here when I say that you, my friend, are an honorary queer, with all the rights and privileges pertaining thereto.

You’ll have to pry Mission Kashmir out my cold, dead hands.

@Prommie: Its a tradition here, those whom the judge is going to destroy, they will first praise.

Just like on the reality teevee shows!

@Prommie:

/like totally off topic/

Is your new avatar (aviatar?) a photo of you with a parrot on your chest, and if so, are you giving us all the bird? T or F?

@Original Andrew: I am standing behind a kitchen counter, with a row of copper pots hanging above me, wearing an apron, but otherwise bare-chested, and with a martini and the ingredients therefore on the counter in front of me. It is a re-creation of the cartoon, Ray from Achewood, that was my previous avatar. It doesn’t work if you have to eplain it, does it?

@Prommie:

That’s what I *love* about Stinque; I learn something new everyday ; )

@Prommie:

Ah, well, you earned it, what with your general awesomeness and so forth.

@nojo: @Prommie: I’d have to agree with TC: you are one of the biggest queers I know.

@nojo: See? I told you. Once you go Hrithik you ain’t goin back.

@Benedick: ” As goes California, so goes the nation.”

It may be simplistic, but my legal philosophy boils down to “liberty and justice for all.”

Twenty four hours ago I was being pummeled at a Slipknot concert. The boy said afterward we weren’t close enough. He should have spoken up because old school rocker can make it to the front.

Anyway . . .

@JNOV: I was telling another guy at work – “where did BIA get that – out of their ass or out of thin air?” Assholes.

@Benedick: Whilst at WalMart today buying slave made jeans and khakis I also picked up two additional boxes of 12 gauge shotgun ammo for my turkey gun. I’m also stocking up on 9mm ammo for the new Glock. Come out for the opera this summer (I’m going to at least two) and fishing, dining and the shooting sports if you care to.

The most awesome tune I heard tonight was “N_____” by Gregory Issacs (dub version).

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