So gay!!!

[billyshelby]

I've said it before, many times, in this thread, Biley, and I have said (or let courts say why, when I quote them) why this is NOT the issue. There's no new way to say it. Either you understand, or you don't. Given the content of the statement I have cited above, you don't.

As I said very early, the judge could find as a "fact" that (1) the moon is made of green cheese, or (2) that brunettes are more attractive than blondes. He can find "as a fact" anything he wants. That doesn't settle the issue.

A court can't change opinion into facts (case 2, above) merely by calling them "facts"

Nor can it bind a higher court to accept as "fact" something which is not a fact (case 1, above).

What this particular judge wants, believes, or would implement as policy if he were dictator, is NOT the issue here.

You keep thinking I'm not getting it, but I think the problem is you keep not liking my reason. Your words: "I DON'T THINK Walker can find, as a fact, anything that is virtually beyond doubt." Well, I don't know what Walker can get away with as 'fact' under the legal guidelines. You seem to want to state that a fact can only be something that is incontrovertibly true. If Walker had said, "It is beyond doubt that gay parents are as good as heterosexual parents," that would be incontrovertibly false as a pure fact. For him to say, "It is beyond serious debate" may actually be "true" so long as he stipulates that, in his judgment, the opposing arguments are too frivolous to consider rationally.

What if he needed to stipulate Gravity was a fact? You could undoubtedly find somebody who doesn't think it is. They'd put up charts and graphs and spew numbers to prove their case. Meanwhile, legions of scientists would make the opposing claim. In that instance, no judge could say, as a finding of Fact, that it is "beyond doubt" gravity exists. Neither side can prove that incontrovertibly. But I would guess a judge could find, as a statement of fact, it is 'beyond serious debate' that gravity doesn't exist.

Gravity is an extreme example, but substitute gravity for Walker's estimation of the defense claims to have actual evidence and his semantically worded finding of fact starts to make more sense. Maybe not to your satisfaction, but not nearly as absurd as you want to portray it.

 

[Hopper]

Whatever Biley. If you truly want an example of how these things go, read the florida opinion and/or the appellate court's opinion in the Minnesota case (which the U.S. Supreme Court summarily denied, on the merits). If you just want to cling to some hope that this judge's "factual findings" will dictate the outcome, help yourself.

 

[One Brow]

That's not what I asked you. Just answer the question, yes or no.

Define "IN ANY WAY correct or appropriate from a statistical standpoint". For all the meanings I can derive, saying it has a margin of error of a couple of orders of magnitude is a quite sufficient description of the accuracy of the process.

1.Then how does he get his .04% success factor?

By deriving the estimate of 100,000 clients in a manner that in no way depends on the sample size of 200.

2. To suggest that any such estimate is needed is the very kind of utter stupidity that I'm not even going to address, Eric. Take the suggestion that such an estimate is required to calculate a statistically accurate "success rate" to some COMPLETE CHUMP, and he too may think its relevant. If so, maybe he'll think it important to try to answer it. I don't.

So, you think there is no importance at all to how often the attempt at reparation therapy actually works, and only a chump would care about how often the therapy is likely to work? Interesting point of view. Most scientists care about how often something works. Even NARTH pretends to care.

 

[billyshelby]

Whatever Biley. If you truly want an example of how these things go, read the florida opinion and/or the appellate court's opinion in the Minnesota case (which the U.S. Supreme Court summarily denied, on the merits). If you just want to cling to some hope that this judge's "factual findings" will dictate the outcome, help yourself.

Let me try another tactic. Say it was your job to prove to me that it is NOT "beyond serious debate" that Gay Parents produce just as healthy children as heterosexual parents (the simplified #70.)

Now let me take a crack at it for you: You will cite studies, articles, expert testimony, whatever you have. But at the end of it, you can't actually prove that what you have introduces the level of "serious debate" needed to rebut the claim. The problem is you presuppose some level of credibility to those studies that the Judge did not. You might be right. Or you might not. We'll find out.

As to your other point, I don't see how it's germane to the specific example of whether or not Walker's statement on 70 is true or false. Don't change the argument. I never said anything about what effect the factual finding in 70 would have on the larger case.

 

[Hopper]

From a legal perspective the interesting part is that the Judge chose to apply the rational basis standard under the 14th Amendment. This means a couple of things:

1) Homosexuals are not given the same 14th Amendment protections as other protected classes such as racial minorities, women, etc. Laws targetting racial minorities have to be justified by showing that they are "necessary to promote a compelling state interest." Laws targetting women have to be shown to be "substantially related to an important state interest." Laws targetting homosexuals, however, need only be justified by showing they are "rationally related to a legitimate government interest." That is the lowest equal protection hurdle that a government has to clear. In this sense, homosexuals are not protected to the same extent as gay advocates would probably like.

2) Despite the low standard the government had to clear, they still didn't clear it. That's not a good sign if you're a Prop 8 supporter.

Let's take Kicky's summary as accurate (I'm not suggesting that it isn't). The Supreme Court can, in theory, say, "We've changed our minds. We were wrong before in not affording homosexuals more than the amount of equal protection rights given to every other average citizen. Henceforth we grant them the same degree of rights as has been given to women (or perhaps to racial and religious minorities)."

That would entitle them to a higher degree of judicial scrutiny of legislative enactments which purportedly "discriminate" against them. And that is the only hope here that I can see. I'm no bottom feeder and I could be wrong (just as a bottom-feeder could be). But they are just not going to prevail on the same "rational reason" standard that all other citizens (except those mentioned) get, if you ask me. Only the Supreme Court can elevate the standard of protection given to homosexuals. Appellate Courts can't (at least not properly).

What I'm saying is that I think it's just wishful thinking to conclude that Prop 8 has no possible or conceivable (which is the test, even though Kicky didn't say it) rational relationship to any legitmate state interest.

 

[Hopper]

I notice that no one has commented on the fact that Judge Walker lifted his stay (which, as I understand it, includes, perhaps among other things, a finding that the defendants are "not likely to succeed on appeal"). The lines at city hall were very long, with gay couples lining up to get marriage licenses. According to news reports, Gov. Schwarzenegger publicly asked the judge to lift his temporary stay. Then the Appellate Court issued an "emergency stay" for a one year period.

Why 1 year, especially if this case will soon be over because, as Judge Walker suggested, the "defendants" (intervenors, really) have no standing to appeal? Why any stay at all if success is unlikely? What does this suggest about how "unassailable" Walker's ruling is, I wonder?

 

[Hopper]

Olsen, Boies, and a bunch of their homeys (looks like about 10 bigshot bottom-feeders in all) filed a 35 page brief in the appellate court opposing the stay. It argued that the appeal was meritless because Prop 8 was unconstitutional on multiple grounds and because the appellant had no standing and that no stay should be granted on a variety of other grounds. It started out by sayin:

"...because a stay holds a ruling in abeyance pending review, it is considered an “intrusion into the ordinary processes of administration and judicial review.” Nken, 129 S. Ct. at 1757. Under Nken, the party seeking a stay “bears the burden of showing that the circumstances justify an exercise of [the court’s] discretion.” Id. at 1761.In determining whether the moving party has met that exacting burden, courts consider:

(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits;
(2) whether the applicant will be irreparably injured absent a stay;
(3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and
(4) where the public interest lies."

https://www.ca9.uscourts.gov/datastore/general/2010/08/14/plaintiffs_opp_to_motion_to_stay.pdf


Judge Walker, who was THERE, dammit, had found that "None of the factors the court weighs in considering a motion to stay favors granting a stay. Accordingly, proponents’ motion for a stay is DENIED."

All of that didn't seem to persuade the appellate court not to issue a stay, for some damn reason. I guess the court found that the "applicant has made a strong showing that he is likely to succeed on the merits," among other things, ya know?

 

[Hopper]

Let me try another tactic. Say it was your job to prove to me that it is NOT "beyond serious debate" that Gay Parents produce just as healthy children as heterosexual parents (the simplified #70.)

Aint no one's job, that's the point. U.S. Supreme Court done said this here:

"A State . . . has no obligation to produce evidence to sustain the rationality of a statutory classification. “[A] legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.” A statute is presumed constitutional, , and “[t]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it,” whether or not the basis has a foundation in the record. Finally, courts are compelled under rational-basis review to accept a legislature’s generalizations even when there is an imperfect fit between means and ends. A classification does not fail rational-basis review because it “ ‘is not made with mathematical nicety or because in practice it results in some inequality.’ “The problems of government are practical ones and may justify, if they do not require, rough accommodations-illogical, it may be, and unscientific.”

Heller v. Doe, 509 U.S. 312 (1993), with citations omitted and emphasis added

"Not subject to courtroom factfinding," see? Nice try, there, Judge Walker.

 

[billyshelby]

Aint, that quote really doesn't help someone like me. I'm not a law talker. So I can't read from that what conditions/guidelines Walker was bound by specific to his 'Findings of Fact' determinations. I mean, I basically understand what it's saying, but I have NO idea if, or how much, it applies to what he did vis a vis 'Findings of Fact.'

As a side note, however, I find it interesting that you cited that Heller case. That quote, I believe, was written by Kennedy. And Walker cited that exact case a few times in his opinion. Yet Kennedy is allegedly the guy he is appealing to with the way he wrote his opinion. So if he cited Kennedy (by way of Heller), and he's appealing to Kennedy (if you buy the punditalysis), then he's both aware of how Heller goes against what he did, but presumably isn't so stupid to have stepped into quicksand, either. In my caveman analysis, I smell smoke.

 

[Hopper]

And Walker cited that exact case a few times in his opinion....he's both aware of how Heller goes against what he did,

Well, that is indeed interesting. I may look for Walker's citations of Heller. He certainly could not have been citing it for any proposition relating to the proper application of the rational relation test, it would seem.

The quote from Heller I posted omitted citations. There were 4-5 prior Supreme Court cases involved from which Kennedy was extracting quotes, so Heller is far from the first case which state the principles involved. I did scan the few citations Walker made to the Heller case. They were very selective, as has been his approach to everything in this case it seems. He just ignores (rather than acknowledge and attempt to distinguish) controlling precedents, such as Baker v Nelson, so this is not really surprising, I guess.

Whether Walker chooses to acknowledge it or not, Heller, and the cases it cites, are controlling precedents. If he wants to ignore them, he can, but he shouldn't expect favorable reception on appeal.

 

[billyshelby]

Yeah, but if you believe he has an endgame, and that endgame involves singing to Kennedy, then there is likely some purpose to what he's doing. The alternative is he's an idiot or a reckless gambler. I don't know the law. I'm an outside spectator who sees puzzle pieces. If you play the smart angle, then he thinks what he wrote will get past the 9th to the Nine. And if he figured that out, then the game changes to how what he wrote will appeal to his basic belief this is a 14th amendment issue.

I have no idea what's in his head. Maybe he's like Sean Connery in Hunt For Red October and thinks he has "one chance in three", but he's hoping they "grab the boat." But probably he thinks that if he gets it passed inspection there are things he wrote that will swing Kennedy who most say is the crucial vote. I don't ultimately care because gay marriage will be a national reality before I'm dead whether it's sanctified in the Constitution or not. But I like the gamesmanship of it all in the now.

 

[Hopper]

For what it's worth, I see that quite a few legal scholars agree with me on the point about article III I was making and about which two law school graduates in this forum were giving me grief and trying to suggest I was clearly wrong. For example:

"If the Ninth Circuit concludes that the Proposition 8 sponsors lack standing, then what? Although the answer is complicated, my initial sense is that if these sponsors are not appropriate parties on appeal, they also lacked standing to defend in the trial court. Which means the trial itself should not have occurred, because there wasn't the constitutionally required concrete and adverse advocacy on both sides. So we would be left with a situation in which plaintiffs sued the state defendants properly, but the state defendants (the Attorney General and Governor) admitted all the relevant facts and did not contest the legal theory of the plaintiffs. My instinct is that, in such a situation, the district judge was wrong to conduct a non-adverse trial....all the reliance he placed his "factual findings at trial" -- a reliance that has been noted by many commentators -- would go away." (Vikram Amar)

https://writ.news.findlaw.com/amar/20100813.html

"Vikram David Amar is the Associate Dean for Academic Affairs and Professor of Law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure."

As I have already noted, what strikes me most about this question is the utter hyprocrisy and solipsism shown by Walker. He conducts a "show trial" with parties who he will later contend have no standing to appeal him. Fundamental fairness and logic seem to be far removed from whatever his motives are and his thinking is, if ya ax me. A zealot will generally say and do almost anything, however dishonest, unreasonable, illogical, or unfair to advance his cause. More and more that's exactly how Walker comes across to me.