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#212237 - 02/08/12 01:03 PM Gay Marriage Tipping Point?
NW Ponderer Offline
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Registered: 09/09/11
Posts: 12047
With the Ninth Circuit ruling that Prop 8 is unconstitutional (potentially reinstating it in the most populous State in the country) California gay marriage ban struck down, appeals court cites equal rights, and with Washington State poised to pass same-sex marriage, Current status the population living in States where it is legal will more than double to more than a quarter of the United States' population. Adding in the States where civil unions or domestic partnerships are legal brings it to more than a third. Moreover, polling indicates that Gay Marriage Opponents [Are}Now in [the] Minority (Polls; FiveThirtyEight). With the Obama administration no longer defending DoMA; with Don't Ask, Don't Tell history, I believe we have finally reached the tipping point where marriage equality will become a reality in the United States. It may take some time, but I think it will become universal in my lifetime.

Moreover, I think there are good arguments that the Supreme Court will not take the 9th Circuit Appeal. Proposition 8 'may not reach Supreme Court'; Prop. 8: U.S. Supreme Court might not take gay-marriage case (a position with which I agree).

What say the masses?
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A well reasoned argument is like a diamond: impervious to corruption and crystal clear - and infinitely rarer.

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#212240 - 02/08/12 01:34 PM Re: Gay Marriage Tipping Point? [Re: NW Ponderer]
Bill Cravener Offline
stranger

Registered: 09/06/11
Posts: 40
Loc: Great State of PA.
Originally Posted By: NW Ponderer
Moreover, I think there are good arguments that the Supreme Court will not take the 9th Circuit Appeal. Proposition 8 'may not reach Supreme Court'; Prop. 8: U.S. Supreme Court might not take gay-marriage case (a position with which I agree).


As do I. I’m what is referred to as straight though I’ve never cared much for that label and I have always been perplexed by conservative’s insistence that we should never allow gays and lesbians to marry. After all America is suppose to be a country of freedoms, right? Must a marriage only be between a man and a woman? I say emphatically NO! As it has often been stated why should gays and lesbians not be allowed the same blessings and miseries of those marriages between a man and a woman (or should I say between a woman and a man)?

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#212244 - 02/08/12 01:49 PM Re: Gay Marriage Tipping Point? [Re: Bill Cravener]
Phil Hoskins Offline
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Registered: 06/07/04
Posts: 20686
Loc: West Hollywood, CA
The arguments against marriage for all are so weak it has always been clear that it is about imposing Christian sharia upon each and every one of us. No abortions, no "gay marriage", public funding for religion, etc etc.

These people don't respect freedom only their contorted view of religion. They are in a word subversives.
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#212246 - 02/08/12 01:50 PM Re: Gay Marriage Tipping Point? [Re: NW Ponderer]
Ardy Online   content
veteran

Registered: 12/22/05
Posts: 11734
Loc: San Jose, Ca USA
It is amazing how apparently inflexible attitudes change. During year 2000, I would have thought it to be a huge struggle to get rid of don't ask don't tell.... gay marriage seem a quixotic objective that hardly was considered.

Now it seems it is only a matter of time until gay marriage is quite normal

I think the Supreme court can read the trend lines... they know it is coming... and I doubt they want to be on the wrong side of the issue since it would tend to erode their credibility


And the easiest way would be to avoid taking a case until it is a foregone conclusion. So they could avoid this current case and not have to make an uncomfortable ruling no matter which way they rule.
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#212248 - 02/08/12 01:52 PM Re: Gay Marriage Tipping Point? [Re: Bill Cravener]
Scoutgal Offline
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Registered: 01/23/01
Posts: 26166
Loc: CA USA
I am really optimistic that this might be the tipping point for same-sex marriage. I think that it is ridiculous to try and legislate morality, especially since one persons moral path might be very different from others. Make it available, and those that want to participate can, and those who do not want to, can maintain their own status quo.
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#212252 - 02/08/12 02:02 PM Re: Gay Marriage Tipping Point? [Re: NW Ponderer]
Ted Remington Offline
old hand

Registered: 07/09/08
Posts: 4890
By way of background, decisions of the 9th circuit are technically only binding upon the 9th circuit. Other courts and circuits may, at their discretion, give some, a good bit, or a great deal of weight to decisions in other circuits. However, since the 9th is arguably the most liberal circuit, other, more conservative, circuits could well ignore the ruling.

Quote:
Cases in United States Courts of Appeals are heard by a three-judge panel. A majority of the active circuit judges may decide to hear or rehear a case en banc. Parties may suggest an en banc hearing to the judges, but have no right to it. Federal law states en banc proceedings are disfavored but may be ordered in order to maintain uniformity of decisions within the circuit or if the issue is exceptionally important. Fed. R. App. P. 35(a). Each court of appeals also has particular rules regarding en banc proceedings. Only a court sitting en banc or the Supreme Court of the United States can overrule a prior decision in that circuit; in other words, one panel cannot overrule another.


If the 9th circuit refuses an en banc proceeding, the plaintiff/appellant may appeal to the Supreme Court, just as he or she could do after losing at the en banc level.

The Supreme Court does not have to hear an appeal. If they refuse to hear an appeal the decision at the next lower court level stands as written.

Assume for a moment that the court en banc upholds the appeals court panel ruling. A rejected appeal to the Supreme Court would rule the ban unconstitutional but only for the Ninth Circuit, which includes, besides California: Alaska, Hawaii, Oregon, Washington state, Montana, Idaho, Nevada, and Arizona.

The decision would apply only in those states, and would most likely end up making unconstitutional similar referenda in one or more of those states.

If the en banc ruling reversed the ruling at the panel level, then the opponents of prop 8 would become the appellants at the Supreme Court level. If the high court refused to hear their appeal that would result in the upholding of Prop 8.

This is a big case with big issues. My guess is that the appellants (those who want Prop 8 upheld) will appeal directly to the Supreme Court rather than waste time on what is in all likelihood another loss even if the 9th circuit agrees to her the case en banc.

The Supreme Court would be in a touchy position. They could deny the appeal, leaving the 9th Circuit alone in holding that Prop 8 is unconstitutional. If they take the case, since their court calendar is already pretty full for the court year, which began on the first Monday in October last, they would have to do some shifting.

They might decide to leave the matter until after the election. I think they will decide to hear the case and announce their decision in late summer, early fall.

It's going to be an interesting few months.
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#212260 - 02/08/12 02:24 PM Re: Gay Marriage Tipping Point? [Re: NW Ponderer]
NW Ponderer Offline
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Registered: 09/09/11
Posts: 12047
Personally, I think that the SCOTUS will decline the case, because the holding is so narrow. If not, they will have to address the Roemer decision, and it is unlikely that there would be a vote to overturn it, especially as Justice Kennedy authored it. Also, it has few corporate rights implications, so the majority would not see much profit to it. They already have the DoMA case to stir up the base with. Oh, and I forgot to mention, the Affordable Care Act to do so as well. Don't think THAT is not political!


Edited by NW Ponderer (02/08/12 03:20 PM)
Edit Reason: Add comment
_________________________
A well reasoned argument is like a diamond: impervious to corruption and crystal clear - and infinitely rarer.

Here, as elsewhere, people are outraged at what feels like a rigged game -- an economy that won't respond, a democracy that won't listen, and a financial sector that holds all the cards. - Robert Reich

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#212272 - 02/08/12 05:18 PM Re: Gay Marriage Tipping Point? [Re: NW Ponderer]
pondering_it_all Offline
old hand

Registered: 02/27/06
Posts: 4350
Loc: North San Diego County
Some articles I have read mentioned that the appeals court decision relies heavily on the fact that Californians had the right to same-sex marriage, and then the voters took away that right for no legitimate reason. (Classic Tyranny of the Majority case.) If their ruling stands, it will only affect states in the 9th circuit in which citizens had the right only to have it removed. In other words: Only California.

But still, California holds something like 13% of the current US population. A few more densely-populated states and we will end up with something like the red/blue presidential election map: Most states not allowing it, but most of the population living in a state that does.

We already have about 18,000 same-sex marriages in California, and the state has not slid into the ocean. No tsunamis, no gigantic earthquakes, and straight couples are still getting married in both civil and religious ceremonies. As more people come to see same-sex marriage as common and normal, the closer we get to full marriage equality. I think the rate of acceptance is accelerating toward a singularity-type event.

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#212274 - 02/08/12 05:32 PM Re: Gay Marriage Tipping Point? [Re: NW Ponderer]
AustinRanter Offline
enthusiast

Registered: 10/29/06
Posts: 3643
Loc: Austin, Texas
The sad fact remains - the court will ultimately define marriage. The court is a function of government. The government is still the ruler of all in one way or another. Just more government intervention and control.

This issue shouldn't be the government's concern.

The really interesting thing about the Republican's unfulfilled swan song: "the government is too big", really doesn't need to be all that big if they figure out a way to control sexual behaviors - regardless of orientation. That would solve their problems with gays and abortion.

Meanwhile...back in the closets on Capitol Hill...
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#212275 - 02/08/12 05:35 PM Re: Gay Marriage Tipping Point? [Re: NW Ponderer]
pdx rick Offline
Member
Carpal Tunnel

Registered: 05/09/05
Posts: 36331
Loc: Portland, Oregon
Originally Posted By: NW Ponderer
...potentially reinstating...

Potentially is the operative word.

Originally Posted By: NW Ponderer

It's a generational thing. The folks against gay marriage are dying off - like the dinosaurs which they are.
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#212277 - 02/08/12 05:47 PM Re: Gay Marriage Tipping Point? [Re: pondering_it_all]
Phil Hoskins Offline
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Registered: 06/07/04
Posts: 20686
Loc: West Hollywood, CA
pondering, the majority opinion relies on the fact that domestic partners in California have exactly the same rights intra-state as married couples, therefore it found the only basis for denying the label "marriage" was one of animus.

If this goes before the Supremes it will be interest to watch the appellants try to disprove their animus. Just one commercial will prove the point.
_________________________
Life is a banquet -- and most poor suckers are starving to death -- Auntie Mame
You are born naked and everything else is drag - RuPaul

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#212278 - 02/08/12 05:48 PM Re: Gay Marriage Tipping Point? [Re: NW Ponderer]
pdx rick Offline
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Registered: 05/09/05
Posts: 36331
Loc: Portland, Oregon
Why can't the stay be lifted immediately?
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#212280 - 02/08/12 05:56 PM Re: Gay Marriage Tipping Point? [Re: pdx rick]
Phil Hoskins Offline
Administrator
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Registered: 06/07/04
Posts: 20686
Loc: West Hollywood, CA
The stay is discretionary with the 9th Circuit, but even if lifted I would guess it would be reinstated by the Supremes.

Here is what I believe is the applicable court rule:
Quote:
FRAP 41. Mandate: Contents; Issuance and Effective Date; Stay
(a)

Contents. Unless the court directs that a formal mandate issue, the mandate consists of a certified copy of the judgment, a copy of the court’s opinion, if any, and any direction about costs.
(b)

When Issued. The court’s mandate must issue 7 days after the time to file a petition for rehearing expires, or 7 days after entry of an order denying a timely petition for panel rehearing, petition for rehearing en banc, or motion for stay of mandate, whichever is later. The court may shorten or extend the time.
(c)

Effective Date. The mandate is effective when issued.
(d)

Staying the Mandate.
(1)

On Petition for Rehearing or Motion. The timely filing of a petition for panel rehearing, petition for rehearing en banc, or motion for stay of mandate, stays the mandate until disposition of the petition or motion, unless the court orders otherwise.
(2)

Pending Petition for Certiorari.
(A)

A party may move to stay the mandate pending the filing of a petition for a writ of certiorari in the Supreme Court. The motion must be served on all parties and must show that the certiorari petition would present a substantial question and that there is good cause for a stay.
(B)

The stay must not exceed 90 days, unless the period is extended for good cause or unless the party who obtained the stay files a petition for the writ and so notifies the circuit clerk in writing within the period of the stay. In that case, the stay continues until the Supreme Court’s final disposition.
(C)

The court may require a bond or other security as a condition to granting or continuing a stay of the mandate.
(D)

The court of appeals must issue the mandate immediately when a copy of a Supreme Court order denying the petition for writ of certiorari is filed.
_________________________
Life is a banquet -- and most poor suckers are starving to death -- Auntie Mame
You are born naked and everything else is drag - RuPaul

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#212327 - 02/08/12 11:24 PM Re: Gay Marriage Tipping Point? [Re: pondering_it_all]
Ardy Online   content
veteran

Registered: 12/22/05
Posts: 11734
Loc: San Jose, Ca USA
Originally Posted By: pondering_it_all

We already have about 18,000 same-sex marriages in California, and the state has not slid into the ocean. No tsunamis, no gigantic earthquakes, and straight couples are still getting married in both civil and religious ceremonies. As more people come to see same-sex marriage as common and normal, the closer we get to full marriage equality. I think the rate of acceptance is accelerating toward a singularity-type event.


Exactly. And it is not just the USA, this is also the clear international trend.

I don't know if the court thinks about such things.... but it seems clear that one side is on the wrong side of history... and it is doubtful that any restricted marriage rights ruling by this court can long withstand the implacable march of history.... no matter this court's political or personal views.

It seems to me that if this court makes a ruling that will soon be reversed by the tide of events.... that would tend to undermine their general judicial reasoning,,, and therefore weaken all of their 5/4 conservative decisions over the long term.


Edited by Ardy (02/09/12 01:10 AM)
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#212332 - 02/09/12 12:20 AM Re: Gay Marriage Tipping Point? [Re: NW Ponderer]
loganrbt Offline
old hand

Registered: 02/20/08
Posts: 5850
Loc: Massaphuggintwoshirts
My marriage was, until the birth of our daughter and her daughter, the absolutely gayest day of my life and still ranks third behind those other two. I cannot for the life of me figure out why we would deny anyone the same gaiety just because of the gender of the partner they chose to join in the occasion. Nice to see legislatures and courts all over the country coming around to the notion.

Gay marriage should be the only kind of marriage we have around here!
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#212419 - 02/09/12 02:17 PM Re: Gay Marriage Tipping Point? [Re: Bill Cravener]
Ken Condon Offline
enthusiast

Registered: 06/13/07
Posts: 2999
Loc: Eugene, OR
Quote:
why should gays and lesbians not be allowed the same blessings and miseries
ROTFMOL
My bold…

Cogh cough-Ahem--indeed after the dust has settled on this and everyone wonders what all the fuss had been about (say 10 years hence) this will all boil down to a goldmine for divorce lawyers and estate planners.

Be sure to get a prenup Phil if you choose to act on this. And Rick--fugedabout it. I don’t see marriage of any sort in your future.
_________________________
The past is always tense, the future perfect.

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#212421 - 02/09/12 02:37 PM Re: Gay Marriage Tipping Point? [Re: NW Ponderer]
numan Offline
veteran

Registered: 08/06/08
Posts: 10853
Loc: What! Me Worry?
'
What effect will this have on common-law marriages?

If a guy shares a batchelor pad with another guy for six months, is he entitled to half the other man's property?

· · · grin
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The ultimate result of shielding men from the effects of folly is to fill the world with fools -- Herbert Spencer

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#212423 - 02/09/12 04:16 PM Re: Gay Marriage Tipping Point? [Re: numan]
Greger Offline
veteran

Registered: 11/24/06
Posts: 11848
Loc: Florida
Quote:
To be defined as a common-law marriage within the states that allow it, the two people must: agree that they are married, live together, and present themselves as husband and wife.
>snip<
Currently, only nine states (Alabama, Colorado, Kansas, Rhode Island, South Carolina, Iowa, Montana, Oklahoma and Texas) and the District of Columbia recognize common-law marriages.

Link
It doesn't sound like that will be a problem...
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"Be yourself; everyone else is already taken."— Oscar Wilde

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#212427 - 02/09/12 05:27 PM Re: Gay Marriage Tipping Point? [Re: NW Ponderer]
NW Ponderer Offline
Moderator
Pooh-Bah

Registered: 09/09/11
Posts: 12047
I don't know of any jurisdiction that allows a "common law" marriage to be formed in months. Is that how it works in Canada?
_________________________
A well reasoned argument is like a diamond: impervious to corruption and crystal clear - and infinitely rarer.

Here, as elsewhere, people are outraged at what feels like a rigged game -- an economy that won't respond, a democracy that won't listen, and a financial sector that holds all the cards. - Robert Reich

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#212429 - 02/09/12 05:42 PM Re: Gay Marriage Tipping Point? [Re: Ken Condon]
Phil Hoskins Offline
Administrator
Carpal Tunnel

Registered: 06/07/04
Posts: 20686
Loc: West Hollywood, CA
Originally Posted By: Ken Hill
Quote:
why should gays and lesbians not be allowed the same blessings and miseries
ROTFMOL
My bold…

Cogh cough-Ahem--indeed after the dust has settled on this and everyone wonders what all the fuss had been about (say 10 years hence) this will all boil down to a goldmine for divorce lawyers and estate planners.

Be sure to get a prenup Phil if you choose to act on this. And Rick--fugedabout it. I don’t see marriage of any sort in your future.


Ken, I write prenups and estate plans for my clients, fyi
_________________________
Life is a banquet -- and most poor suckers are starving to death -- Auntie Mame
You are born naked and everything else is drag - RuPaul

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#212430 - 02/09/12 05:59 PM Re: Gay Marriage Tipping Point? [Re: NW Ponderer]
NW Ponderer Offline
Moderator
Pooh-Bah

Registered: 09/09/11
Posts: 12047
BTW, in case anyone wants to read it: PERRY v. BROWN
Quote:
Whether under the Constitution same-sex couples may ever be denied the right to marry, a right that has long been enjoyed by opposite-sex couples, is an important and highly controversial question. It is currently a matter of great debate in our nation, and an issue over which people of good will may disagree, sometimes strongly. Of course, when questions of constitutional law are necessary to the resolution of a case, courts may not and should not abstain from deciding them simply because they are controversial. We need not and do not answer the broader question in this case, however, because California had already extended to committed same-sex couples both the incidents of marriage and the official designation of ‘marriage,’ and Proposition 8's only effect was to take away that important and legally significant designation, while leaving in place all of its incidents. This unique and strictly limited effect of Proposition 8 allows us to address the amendment's constitutionality on narrow grounds.
and
Quote:
By using their initiative power to target a minority group and withdraw a right that it possessed, without a legitimate reason for doing so, the People of California violated the Equal Protection Clause. We hold Proposition 8 to be unconstitutional on this ground. We do not doubt the importance of the more general questions presented to us concerning the rights of same-sex couples to marry, nor do we doubt that these questions will likely be resolved in other states, and for the nation as a whole, by other courts. For now, it suffices to conclude that the People of California may not, consistent with the Federal Constitution, add to their state constitution a provision that has no more practical effect than to strip gays and lesbians of their right to use the official designation that the State and society give to committed relationships, thereby adversely affecting the status and dignity of the members of a disfavored class.


Edited by NW Ponderer (02/09/12 11:55 PM)
Edit Reason: Add Quotations
_________________________
A well reasoned argument is like a diamond: impervious to corruption and crystal clear - and infinitely rarer.

Here, as elsewhere, people are outraged at what feels like a rigged game -- an economy that won't respond, a democracy that won't listen, and a financial sector that holds all the cards. - Robert Reich

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#212498 - 02/10/12 12:33 PM Re: Gay Marriage Tipping Point? [Re: Phil Hoskins]
Ken Condon Offline
enthusiast

Registered: 06/13/07
Posts: 2999
Loc: Eugene, OR
Quote:
Ken, I write prenups and estate plans for my clients, fyi

I am aware of that. It was just designed to be a good natured poke at you.

On the other hand awhile ago we knew a gal whose father was an estate lawyer and he managed to die intestate. It was a can of worms that took the family years to unravel and about did in his spouse. Perhaps that was his intention--who knows.
_________________________
The past is always tense, the future perfect.

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#212502 - 02/10/12 01:02 PM Re: Gay Marriage Tipping Point? [Re: NW Ponderer]
NW Ponderer Offline
Moderator
Pooh-Bah

Registered: 09/09/11
Posts: 12047
I I had been drafting estate plans for over a dozen years before I could convince my wife, also a lawyer, to draft hers.
_________________________
A well reasoned argument is like a diamond: impervious to corruption and crystal clear - and infinitely rarer.

Here, as elsewhere, people are outraged at what feels like a rigged game -- an economy that won't respond, a democracy that won't listen, and a financial sector that holds all the cards. - Robert Reich

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#213860 - 02/23/12 08:00 PM Re: Gay Marriage Tipping Point? [Re: NW Ponderer]
NW Ponderer Offline
Moderator
Pooh-Bah

Registered: 09/09/11
Posts: 12047
_________________________
A well reasoned argument is like a diamond: impervious to corruption and crystal clear - and infinitely rarer.

Here, as elsewhere, people are outraged at what feels like a rigged game -- an economy that won't respond, a democracy that won't listen, and a financial sector that holds all the cards. - Robert Reich

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